An Insight of Article 35A & 370 of Constitution of India

1. AN INSIGHT OF ARTICLE 35A & 370 OF
CONSTITUTION OF INDIA
Authored by: Juris & Juris Team
SPECIAL STATUS TO J&K (ARTICLE 35A & 370 of INDIAN CONSTITUTION)
During the reign of British Government, India consisted of two parts, i.e. British India and Indian
India. The British India consisted 12 provinces & covering 2/3th
area approx. of country whereas
Indian India consisted 564 Princely States covering remaining 1/3rd
area of country and contained
1/4th
of its people.
The absorption of the former Princely States in the Indian Constitutional structure came to its
triumphant ending on 26 November 1949, the day the members of the Constituent Assembly
signed the completed Constitution.
In this whole process of integration of Princely States with India, only Kashmir chose to act
differently. Unlike all other Princely States which decided to adopt the Indian Constitution as a
whole and merged themselves fully in the national mainstream, the State of Jammu and Kashmir
expressed its inability before the Constituent Assembly to extend the contents of the Instrument of
Accession till the Constituent Assembly of the State had taken a decision in the matter.
The accession of State of Jammu & Kashmir (J&K) took place on the 26th October, 1947. However,
Shri N. Gopalaswami Ayyangar in the constituent assembly debate emphasized that “State of J&K is
not yet ripe for this kind of integration. It was hoped that in due course even Jammu and Kashmir
will become ripe for the same sort of integration as has taken place in the case of other States. At
present it is not possible to achieve that integration”.
In the case of the other Indian States or Unions of States there are three points to be remembered:
1. They have all accepted the Constitution framed for States in Part I of the new Constitution
and those provisions have been adapted so as to suit conditions of Indian States and Unions
of States.
2. The Centre i.e., the Republican Federal Centre will have power to make laws applying in
every such State or Union to all Union Concurrent Subjects.
3. A uniformity of relationship has been established between those States and Unions and the
Centre. Kashmir's conditions are special and require special treatment.
The special circumstances, to which reference was made by Shri N. Gopalaswami Ayyangar were:--
1. that there had been a war going on within the limits of Jammu & Kashmir State;
2. that there was a cease-fire agreed to at the beginning of the year and that cease-fire was
still on;
3. that the conditions in the State were still unusual and abnormal and had not settled down;
4. that part of the State was still in the hands of rebels and enemies;

2. 5. that our country was entangled with the United Nations in regard to Jammu & Kashmir and
it was not possible to say when we would be free from this entanglement;
6. that the Government of India had committed themselves to the people of Kashmir in
certain respects which commitments included an undertaking that an opportunity be given
to the people of the State to decide for themselves whether they would remain with the
Republic or wish to go out of it; and
7. that the will of the people expressed through the Instrument of a Constituent Assembly
would determine the Constitution of the State as well as the sphere of Union Jurisdiction
over the State.
When the Constitution of India came into force on January 26, 1950, special provisions were made
for the state of J&K, in the form of Article 370 and Article 35A, which was a temporary provision
and remains so till 04.08.2019.
ARTICLE 370
The insertion of Article 370 was to define the applicability of the Constitution of India in the state of
J&K till the Constitution of the state was finalised. Article 370 was drafted in Part XXI of the
Constitution, which relates to “Temporary, Transitional and Special Provisions”. Clause 3 of the
Article empowered the President of India on the recommendation of the J&K Constituent
Assembly to issue a notification for the abrogation of Article 370.
Delhi Agreement, 1952
As the Constituent Assembly required time to produce a definitive document, Nehru, as an interim
measure, decided to obtain from Sheikh Abdullah, a sense of the kind of relationship that would
emerge between the Indian union and the state of J&K. The result of which was encapsulated in a
document called the Delhi Agreement. This was announced on July 24, 1952, though it had no
constitutional validity.
CONSTITUENT ASSEMBLY DRAFTED ARTICLE
The Honourable Shri N. Gopalaswami Ayyangar: (Madras General) moved amendment no. 379 of
List XV and the following new article be inserted:
Article 306A
1. Notwithstanding anything contained in this Constitution,
a. the provisions of Article 211A of this Constitution shall not apply in relation to the
State of Jammu and Kashmir;
b. the power of Parliament to make laws for the State shall be limited to
i. those matters in the Union List and the Concurrent List which, in
consultation with the Government of the State, are declared by the
President to correspond to matters specified in the Instrument of Accession
governing the accession of the State to the Dominion of India as the matters

3. with respect to which the Dominion Legislature may make laws for the
State; and
ii. such other matters in the said List as, with the concurrence of the
Government of the State, the President may by order specify;
Explanation- For the purposes of this Article, the Government of the State means the person for the
time being recognised by the Union as the Maharaja of Jammu and Kashmir, acting on the advice of
the Council of Ministers."
c. the provisions of Article 1 of this Constitution shall apply in relation to the State;
d. such of the other provision of this Constitution and subject to such exceptions and
modifications shall apply in relation to the State as the President may by order
specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession
of the State aforesaid shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last
preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in sub-clause (b) (ii) or in the
second proviso to sub-clause (d) of clause (1) was given before the Constituent Assembly for the
purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly
for such decision as it may take thereon.
(3) Notwithstanding anything in the preceding clause 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 shall be necessary
before the President issues such a notification.
Part XXI- Temporary, Transitional and Special Provisions
Article 370
1) Notwithstanding anything in this Constitution,—
a. the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
b. the power of Parliament to make laws for the said State shall be limited to—
i. those matters in the Union List and the Concurrent List which, in consultation with
the Government of the State, are declared by the President to correspond to
matters specified in the Instrument of Accession governing the accession of the
State to the Dominion of India as the matters with respect to which the Dominion
Legislature may make laws for that State; and
ii. such other matters in the said Lists as, with the concurrence of the Government of
the State, the President may by order specify.
Explanation—For the purposes of this Article, the Government of the State means the person
for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting

4. on the advice of the Council of Ministers for the time being in office under the Maharaja’s
Proclamation dated 05.03.1948;
c. the provisions of Article 1 and of this article shall apply in relation to that State;
d. such of the other provisions of this Constitution shall apply in relation to that State subject to
such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of
Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in
consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in
the last preceding proviso shall be issued except with the concurrence of that Government.
2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b)
of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the
Constituent Assembly for the purpose of framing the Constitution of the State is convened, it
shall be placed before such Assembly for such decision as it may take thereon.
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.
Article 35A
In February 1954, the Constituent Assembly ratified the State’s accession to India. In pursuance of
this ratification, the President of India promulgated the Constitution (Application to Jammu &
Kashmir) Order, 1954, placing on a final footing the applicability of the other provisions of the Indian
Constitution to J&K and accorded legal sanctity to the Delhi Agreement.
Article 35A of the Indian Constitution empowered the Jammu and Kashmir State legislature to
define “permanent residents” of the state and provided special rights and privileges to the
permanent residents of J&K.
Article 35A of the Constitution, inserted through a special Presidential order in 1954, gives Jammu
& Kashmir State Assembly exclusive power,
a. to define “who is and is not a ‘permanent resident’ of the State”.
b. to determine as to which people in or outside the State will have special rights and privileges
granted by the State,
c. to determine the recipients of State grants, the right to purchase Land & Property in the
State, as well as settling permanently in the region,
d. to restrict rights of any person not classified under “permanent resident” of the State.
ARTICLE 35A: Saving of laws with respect to permanent residents and their rights —

5. Notwithstanding anything contained in this Constitution, no existing law in force in State of Jammu
& Kashmir, & no law hereafter enacted by 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 & 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.
J&K Constitution
PART III PERMANENT RESIDENTS
Article-6
1. Every person who is, or is deemed to be, a citizen of India under the provisions of the
Constitution of India shall be a permanent resident of the State, if on the 14.05.1954
(a) he was a State subject of class I or of class II: or
(b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the
State for not less than 10 years prior to that date.
2. Any person who, before the 14.05.1954 was a State subject of Class I or of Class II and who,
having migrated after the 01.03.1947, to the territory now included in Pakistan, returns to the
State under a permit for resettlement in the State or for permanent return issued by or under the
authority of any law made by the State Legislature shall on such return be a permanent resident of
the State.
3. In this section, the expression "State subject of Class I or of Class II" shall have the same meaning
as the State Notification No I-L/84 dated 20.04.1927, read with State Notification No 13/L dated
27.05.1932.
NOTIFICATION No. G.S.R. 551(E) DATED 05.08.2019
The President in exercise of its powers conferred by Article 370(1) of the Constitution of India and
with concurrence of the Government of State of Jammu and Kashmir made the following order:
1. This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
2. It shall come into force at once, and shall thereupon supersede the Constitution (Application to
Jammu and Kashmir) Order, 1954 as amended from time to time.
3. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the
State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so
apply.

6. 4. The Following clauses shall be added to article 367, namely:—
(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and
Kashmir—
(a) references to this Constitution or to the provisions thereof shall be construed as
references to the Constitution or the provisions thereof as applied in relation to the said
State;
(b) references to the person for the time being recognized by the President on the
recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu
and Kashmir, acting on the advice of the Council of Ministers of the State for the time being
in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including
references to the Governor of Jammu and Kashmir acting on the advice of his Council of
Ministers; and
(d) in proviso to article 370(3) of this Constitution, the expression “Constituent Assembly of
the State referred to in clause (2)” shall read “Legislative Assembly of the State”.