This is the detailed analysis of the situation of Article 35-A and 370 which deals with the accession of J&K State to India. Which is the most famous topic in the yesteryears politics as well as today's politics.

1. CRITICALANAYLSIS OF ARTICLE
35AAND ITS RELATED LAWS
(ARTICLE 370 & CONSTITUTION OF JAMMU &
KASHMIR)

2. Content:
1. The State of Jammu & Kashmir;
2. Position of the State under the Original Constitution of India;
3. The Constitution Order of 1950;
4. Articles of the Constitution which apply of their own force to the
State
5. History of the Constitution (Application to Jammu & Kashmir) Order,
1954 [The Delhi Agreement];
6. {Constitution of India vs. Constitution of Jammu and Kashmir, 1954;
7. Article 35A;
8. Effects of Article 35A;

3. Cont.…
9. Amendbility of the Article 35A;
i. Does the President of India have sole power to amend the Constitution
through “Order”?;
ii. Does Article 370 have the power to incorporate new Article in the
Constitution or amend the Constitution?;
iii. Article 368: Amendment power of the Constitution and Article 35A;
10. Judiciary:
i. Judicial Approach on Article 35A-WHY ARTICLE 35A IS BEING DEBATED;
ii. WHY ARE POLITICAL PARTIES & SEPARATISTS OPPOSED TO TINKERING
WITH 35A?;
11. Conclusion;

4. The State of Jammu and Kashmir
 The state of Jammu & Kashmir holds a peculiar position under the Constitution of India. It
forms a part of the ‘territory of India’ as defined in Article 1 of the Constitution, being the
fifteenth State included in First Schedule of the Constitution, as it stands amended. In the
Original Constitution, as it stands as the Part B state but later it was amended in the 7th
amendment act, 1956, which implemented the changes introduced by the former Act,
included Jammu & Kashmir in the list of ‘states’ of the Union of India, all of which were
now included in one category.
 Nevertheless, the special constitutional position which Jammu and Kashmir enjoyed under
the original Constitution [Art.370] has been maintained, so that all the provisions of the
constitution relating to the States in the First Schedule are not applicable to J&K eyed
though it is one of the state specified in that Schedule.

6. Position of the State under the Original
Constitution of India;
 All the provisions of the Constitution are applicable to all the states of India except
the state of Jammu and Kashmir. This Peculiar position was due to the fact that
having regard to the circumstances in which the State acceded to India, the
Government of India has declared that it was the people of the State of J&K,
acting through their Constituent Assembly, who were to finally determine the
constitution of the State and the Jurisdiction of the Union of India. The
applicability of the provision of the Constitution regarding the State were,
accordingly, to be in the nature of an interim arrangement.

7. The Constitution Order of 1950;
 In pursuance of the above provisions of the Constitution, the President made the Constitution
(Application to Jammu and Kashmir) order, 1950, in consultation with the Government of the State
of Jammu and Kashmir, specifying the matters with respect to which the Union Parliament would be
competent to make laws for Jammu and Kashmir, relating to the three subjects of Defence, Foreign
Affairs, and Communications with respect to which Jammu and Kashmir had acceded to India.

8. Articles of the Constitution which apply of
their own force to the State;
 When India made her Constitution in 1949, it was natural that this dual attitude of the Government of India
should be reflected in the position offered to the State of Jammu and Kashmir within the framework of the
Constitution. The Act of Accession was unequivocally given legal effects by declaring J&K a part of the
territory of India [Article 1]. But the application of the other provisions of the Constitution of India to Jammu &
Kashmir was placed on a tentative basis, subject to the eventual approval of the Constituent Assembly of the
State. The Constitution thus provided that the only Article of the Constitution which would apply of their own
force to Jammu & Kashmir were- Article 1 and Article 370. The application of the other Articles was to be
determined by the President in Consultation with the Government of the State [Article 370]. The legislative
authority of Parliament over the State, again, would be confined to those items of the Union and Concurrent
Lists as correspond to matters specified in the Instrument of Accession. The above interim arrangement would
continue until the Constituent Assembly for J&K made its declaration. It would then communicate its
recommendations to the President, who would either abrogate Article 370 or make such modification as might
be recommended by that Constituent Assembly. Article 370 is Drafted by Sir N. Gopalaswami Ayyanga, who
was one of the member of the Drafting Committee of the Constitution. Has had also served as the Prime
Minister of the Territory of Jammu and Kashmir (1937-1943) and also former Diwan to Maharajah Hari Singh
of Jammu and Kashmir. But Dr. Ambedkar refused to draft Article 370 of the constitution on the grounds that it
was discriminatory and against the principles of unity and integrity of the nation. But it was made forcefully.

10. History of the Constitution (Application to Jammu &
Kashmir) Order, 1954 [The Delhi Agreement];
 Sheikh Abdullah who took over the reins from Hari Singh in 1949 negotiated the State’s political relationship with
New Delhi, which led to providing special status through the formulation of Article 370, the subject of intense
debate for long. However, under the 1952 Delhi Agreement between Sheikh Abdullah and Jawaharlal Nehru,
several provisions of the Constitution were extended to Jammu and Kashmir through the 1954 Presidential Order.
Article 35A, not a part of the original Constitution, was conceived under the 1952 Delhi Agreement entered into
by Jammu and Kashmir with India. In other words, it is a byproduct of Article 370 of the Indian Constitution.
Article 370 guarantees special status to the State of Jammu and Kashmir as clause (1) (d) specifically states that
‘such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions as
the President may by order specify. Article 35A is one such exception issued through Presidential Order in 1954
known as Constitutional Order No. 48 which can be found as Appendix I to the Constitution.
 In 1975 due to Indira-Abdullah it was agreed that the special status of the State of J&K would continue to remain
under the provisions of Article 370 of the Constitution of India, which was described as a “temporary” measure, in
the original Constitution. A halt was, thus, cried to the progress of integration of this State with the Union of India,
which had started in 1954, by giving larger autonomy to the State Assembly in certain matters.
 It should, however, be mentioned that owing to differences over matters arising out of the Agreement, it has not
been implemented by issuing a fresh Presidential Order under Article 370.

11. {Constitution of India vs. Constitution of
Jammu and Kashmir, 1954;
 In view of the uniform and consistent stand taken up by the Jammu and Kashmir Constituent Assembly that sovereignty in all matters
other than those specified in the Instrument of Accession continues to reside in the State, the Government of India agreed that, while
the residuary powers of legislature vested in the Centre in respect of all states other than Jammu and Kashmir, in the case of the latter
they vested in the State itself;
 It was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their
domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State legislature was given power to make laws for
conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932
(Notification No.1-L/84 dated 20-04-1927 and 13/L dated 27-06-1932) the State legislature was also empowered to make laws for the
‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;
 As the President of India commands the same respect in the State as he does in other Units of India, Articles 52 to 62 of the
Constitution relating to him should be applicable to the State. It was further agreed that the power to grant reprieves, pardons and
remission of sentences etc.; would also vest in the President of India;
 The Union Government agreed that the State should have its own flag in addition to the Union flag, but it was agreed by the State
Government that the State flag would not be a rival of the Union flag; it was also recognised that the Union flag should have the same
status and position in Jammu and Kashmir as in the rest of India, but for historical reasons connected with the freedom struggle in the
State, the need for continuance of the State flag was recognised;
 There was complete agreement with regard to the position of the Sadar-i-Riyasat; though the Sadar-i-Riyasat was to be elected by the
State Legislature, he had to be recognised by the President of India before his installation as such; in other Indian States the Head of
the State was appointed by the President and was as such his nominee but the person to be appointed as the Head, had to be a person
acceptable to the Government of that State; no person who is not acceptable to the State Government can be thrust on the State as the
Head. The difference in the case of Kashmir lies only in the fact that Sadar-i-Riyasat will in the first place be elected by the State
legislature itself instead of being a nominee of the Government and the President of India. With regard to the powers and functions of
the Sadar-i-Riyasat the following argument was mutually agreed upon:

12. Cont.…
 The Head of the State shall be a person recognised by the President of the Union on the recommendations of the Legislature of the
State;
 He shall hold office during the pleasure of the President;
 He may, by writing under his hand addressed to the President, resign his office;
 Subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his
office;
 Provided that he shall, notwithstanding the expiration of his term, continue to hold the office until his successor enters upon his office"
 With regard to the fundamental rights, some basic principles agreed between the parties were enunciated; it was accepted that the
people of the State were to have fundamental rights. But in the view of the peculiar position in which the State was placed, the whole
chapter relating to ‘Fundamental Rights’ of the Indian Constitution could not be made applicable to the State, the question which
remained to be determined was whether the chapter on fundamental rights should form a part of the State Constitution or the
Constitution of India as applicable to the State;
 With regard to the jurisdiction of the Supreme Court of India, it was accepted that for the time being, owing to the existence of the
Board of Judicial Advisers in the State, which was the highest judicial authority in the State, the Supreme Court should have only
appellate jurisdiction;
 There was a great deal of discussion with regard to the "Emergency Powers"; the Government of India insisted on the application of
Article 352, empowering the President to proclaim a general emergency in the State; the State Government argued that in the exercise
of its powers over defence (Item 1 on the Union List), in the event of war or external aggression, the Government of India would have
full authority to take steps and proclaim emergency but the State delegation was, however, averse to the President exercising the power
to proclaim a general emergency on account of internal disturbance.

14. Article 35A;
 Article 35A is the sole provision in the IC which neither discuss in the Constituent Assembly nor in the Parliament. This Article came
into existence by a Presidential Order passed by Dr. Rajandra Prasad on the advice of Nehru’s cabinet in 1954 “The Constitution
(Application to Jammu and Kashmir) Order, 1954”. This Article states about the rights and privileges of the permanent resident of the
Jammu and Kashmir which exclude any person from all State’s benefits who is not the permanent resident of the State. This Presidential
Oder exercises its power from Article 370 (1), the Article 35A states:-
 Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and 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
 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

15. Effects of Article 35A;
 A most prominent feature of the Constitution of Jammu & Kashmir, as distinguished from
the rest of India, is the provision for the special treatment of 'permanent residents' of
Jammu & Kashmir.
 The permanent residents are such persons as are declared so by any existing law of the
State or by any future law enacted by the Legislature of the State. As stated in the Article,
any such law may either confer special rights or privileges or impose restrictions upon the
permanent residents with respect to employments under the State Government,
acquisition of immovable property in the State, settlement in the State and the right to
scholarships and other forms of aid as the State Government may provide.
 Such legislation shall be valid notwithstanding that it is inconsistent with the Fundamental
Rights conferred by the Constitution of India upon the other citizens of India [e.g. by
Articles. 15(1), 16(1), 19(1) (e)-(f) of Part III of the Constitution dealing with the fundamental
rights].

16. Amendbility of the Article 35A;
i. Does the President of India have sole power to amend the Constitution
through “Order”?;
 Besides giving assent to the Bill passed by the Bothe Houses (Lok Sabha and Rajya Sabha),
President of India has sole legislative power under article 123 power to make ordinance when
either house of the Parliament is not in session. This legislative powers of the President have
only six-month effect; in other words, it is the authority to make laws without discussion in the
Parliament in urgency for a shorter period. It is an exception in the making law not a general
rule or a permanent measure.
 In the Constitutional scheme, the President of India has no legislative power to amends the
Constitution by bypass the democratic process. President’s legislative, executive and judicial
power is subjective to aid and advice by the Council of Minister (Art 74), but all these powers
do not allow to the President to go beyond the spirit of the Constitution.

17. ii. Does Article 370 have the power to incorporate new
Article in the Constitution or amend the Constitution?;
 Nowhere in the Article 370 mention that President of India has the power to amend the
Constitution or insert a new Article in the Constitution? The Article 370 only states that the
President can make any exceptions and modifications with the concurrence of the Government
of the State. Sub-clause 1 (d) of the Article 370 states that:
 “Such power 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.”

18. iii. Article 368: Amendment power of the Constitution
and Article 35A;
 Article 368 is the only way to amend the Constitution, not the President. The marginal note of
Article 368 states “Power of the Parliament to amend the Constitution and procedure, therefore,
which means it is the Parliament that has the power to amend the Constitution. Sub-clause 2 of the
Article 368 states that:
 “An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament and when the Bill is passed in each House by majority of the
total membership of that House and by a majority of not less than two-third of the members of that
House present and voting, [it shall be presented to the President who shall give his assent to the Bill
and thereupon] the Constitution shall stand amended in accordance with the terms of Bill”
 It is quite clear that Article 368 is the only ways that amend the Constitution by way of addition,
variation or repeal any provisos of the Constitution.

19. Judiciary;
i. Judicial Approach on Article 35A-WHY ARTICLE 35A IS BEING DEBATED;
 A Delhi based NGO “We the Citizens” challenge the constitutionality of Article 35A before the Supreme Court
of India. Another petition filed by a Jammu and Kashmir native Charu Wali Khanna who challenged the
constitutionality of Article 35A which restrict the constitutional right, right to property. According to this Article
35A if a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir then
she would restrict from her property right.
 The petitioner claimed that: “Her children are denied a permanent resident certificate, thereby considering them
illegitimate.” The petition states that Article 35A is against the “very spirit of oneness of India” as it creates a
“class within a class of Indian citizens.” Restricting citizens from other States from getting employment or
buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of
the Constitution.

20. ii. WHY ARE POLITICAL PARTIES & SEPARATISTS OPPOSED TO
TINKERING WITH 35A?;
 Fear that it would lead to further erosion of J&K's autonomy and trigger demographic change in
Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists
fan paranoia against possibility of Hindus 'flooding' the valley. However, in the last 70 years,
demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and
Buddhists in Ladakh have rights to buy property and settle in the Valley.

21. Conclusion;
 By above analysis, we can say that neither the President of India has sole power to amend the
constitution through bypass the entire Constitutional mechanism nor the Article 370 gives power to
the President to insert any Article in any Part of the Constitution. According to the Constitutional
scheme, legally the question of that the president cannot make constitutional amendments is
settled but 35 A is more than just a legal issue. It is the need of the hour to debate Article 35A
because it has larger socioeconomic and political issue. At present, the matter is sub judice before
the apex court let’s see what will be the decision of the Supreme Court of India on the
Constitutionality of Article 35A. Article 370 is acting as the powerhouse for running Article 35A in its
best condition. Let’s hope what the Apex Court will decide in the next hearing which will happen in
the month of January, 2019.
 Power to put an end to Article 370: “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.”

23. Thank You