1) The document discusses Article 370 and Article 35A of the Indian constitution which granted special status to the state of Jammu and Kashmir. 2) It provides historical context for the accession of Jammu and Kashmir to India and outlines the key features and provisions of Article 370 and 35A including Jammu and Kashmir having its own constitution and flag. 3) It notes that in 2019, the Indian government revoked Article 370 and 35A, eliminating the special status of Jammu and Kashmir and integrating it fully into India as a union territory. This move is being challenged in the Indian Supreme Court.

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SPECIAL STATUS TO J&K
ARTICLE 370 & 35-A
SHAHID BASHIR MALIK (1RV19CV410)
1
09-02-
2022
Constitution of India and Professional
Ethics

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SPECIAL STATUS TO J&K
2
1. Part XXI of the Constitution of India, which deals
with "Temporary, Transitional and Special provisions".
2. Article 370- Special status has been given to Jammu & Kashmir.
3.Article 370 made Jammu and Kashmir a country within a country, with
its own flag, emblem, constitution and Sadr-i Riyasat (Prime Minister).
09-02-2022 Constitution of India and Professional Ethics

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HISTORICAL ASPECT
 J&K chose to remain independent at the time of India, Pakistan
Independence.
 An agreement was entered by J&K with Pakistan and India that none of them
will attack J&K. While India respected the agreement and exercised restraint,
Pakistan attacked Kashmir in a bid to annex it by force.
 On 6th October 1947, Kashmir was attacked by "Azad Kashmir Forces"
supported by Pakistan. To save J&K, the then ruler Maharaja Hari Singh
chose to accede J&K to India.
 In October 1947, the accession was made by the ruler in favour of India in
consideration of certain commitments made by Pt. Jawahar Lal Nehru (the
then Prime Minister of India). It was in the pursuance of those commitments
that Article 370 was incorporated in the Constitution.
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CONT..
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WHAT IS ARTICLE 370?
 Temporary provision in the Indian Constitution.
 The Ruler of Jammu and Kashmir signed the instrument of accession whereby only three subjects
were surrendered by the State to the Dominion of India.
 1. External affairs
 2. Defense and
 3. Communications
 The State enjoys a greater measure of autonomy and the power of the Union of India is restricted,
as regards other States.
 The Union of India is incompetent to declare financial emergency and emergency in case of failing
of constitutional machinery with respect to the State of J&K.
 Only emergency due to War or External Aggression can be declared as it is within the scope of
"Defense" as surrendered to the Union of India.
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CONT..
 Union Legislature can not legislate the provided the Union and
Concurrent which not accordance with subjects provided
instrument
 The consultation Government required any matter that affects
State.
 It can issue independently only it somehow related three subjects
surrendered those expressly mentioned instrument accession.
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ATRICLE 35 A
 Article 35A
 Article 35A was introduced through a presidential order in 1954 to
continue the old provision of the territory regulation under Article
370 of the Indian constitution.
 The article permits the local legislature in Indian administered
Kashmir to define permanent residents of the region.
 It forbids outsiders from permanently settling, buying land,
holding local government jobs or winning education scholarships in
the region.
 If a woman marriage a man in other Indian state, she loses her
citizenship. Whereas if any woman marriages a pakistani, she will
be entitled to have a citizenship of J&K.
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.

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TEXT OF ART. 370
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CONT..
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SPECIAL FEATURES
SEPARATE CONSTITUTION
 J&K is the only state in India which has a Constitution of its
own.
 The Constitution of J&K was enacted by a separate
Constituent Assembly set up by the State and it came into
force on 26th January, 1957.
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SPECIAL FEATURES
Jurisdiction of Parliament
 Limited jurisdiction in case of J&K as compared to other states.
 Till 1963, Parliament could legislate on subjects contained in the Union List,
and had no jurisdiction in case of Concurrent List under 7th Schedule of the
Constitution. But now, the Parliament has power to legislate not just on
subjects contained in the Union List but also on some of the subjects of
Concurrent List.
 Residuary powers, unlike other states, rest with J&K.
 The Parliament has no power to legislate Preventive Detention laws for the
state; only the state legislature has the power to do so.
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SPECIAL FEATURES
Residuary powers, unlike other states, rest with J&K.
 The Parliament has no power to legislate Preventive Detention laws for the
state; only the state legislature has the power to do so.
 Autonomy in certain matters
 Any action of the Union Legislature or Union Executive which results in
alteration of the name or territories or an international treaty or agreement
affecting the disposition of any part of the territory of the state requires the
consent of the State Legislature or the State Executive (as the case may be) to
be effective.
 The Union has no power to suspend the Constitution of J&K.
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SPECIAL FEATURES
Emergency Provisions
 The Union of India has no power to declare Financial Emergency under Article 360 in the
state.
 The Union can declare emergency in the state only in case of War or External Aggression.
 No proclamation of emergency made on the grounds of internal disturbance or imminent
danger thereof shall have effect in relation to the state unless
 (a) it is made at the request or with the concurrence of the government of the state; or
 (b) where it has not been so made, it is applied subsequently by the President to that state at
the request or with the concurrence of the government of that static.
 Fundamental Duties, Directive Principles & Fundamental Rights
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SPECIAL FEATURES
Fundamental Duties, Directive Principles & Fundamental Rights
 Part IV (Directive Principles of the State Policy) and Part IVA
(Fundamental Duties) of the Constitution are not applicable to
J&K.
 Part III (Fundamental Rights) In addition to other fundamental
rights, Articles 19(1)(f) and 31(2) of the Constitution are still
applicable to J&K; hence the Fundamental Right to property is
still guaranteed in this state.
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SPECIAL FEATURES
High Court of J&K
 The High Court of J&K has limited powers as compared to other
High Courts within India. It can't declare any law unconstitutional.
 Unlike High Courts in other states, under Article 226 of the
Constitution, it can't issue writs except for enforcement of
Fundamental Rights.
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SPECIAL FEATURES
Official Languages
 Provisions of Part XVII of the Constitution apply to J&K only insofar as they
relate to, (i) the official language of the Union;
 (ii) the official language for communication between one state and another; or
between a state and the Union; and (iii) language of the proceedings in the
Supreme Court.
 Urdu is the official language of the state but use of English is permitted for
official purposes unless the state legislature provides otherwise.
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SPECIAL FEATURES
Procedure for Amendment of State Constitution
 The Provisions of the State Constitution (except those relating to
the relationship of the state with the Union) may be amended by an
Act of the Legislative Assembly of the state passed by not less than
two-thirds of its membership.
 If such amendment seeks to affect Governor or Election
Commission, it needs President's assent to come into effect. No
amendment of the Constitution of India shall extend to J&K unless
so extended by an order of the President under Article 370(1).
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Demand for Abrogation of Article 370
Arguments for Abrogation of Article 370:
 It has created certain psychological barriers. It is the root cause of all the
problems in J&K.
 It is this Article 370 which encourages secession activities within J&K and
other parts of the country.
 It was a temporary arrangement which was supposed to erode gradually.
 It acts as a constant reminder to the Muslims of JAK That they have still to
merge with the country,
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Demand for Abrogation of Article 370
Arguments for Abrogation of Article 370:
 It has created certain psychological barriers. It is the root cause of all the
problems in J&K.
 It is this Article 370 which encourages secession activities within J&K and
other parts of the country.
 It was a temporary arrangement which was supposed to erode gradually.
 It acts as a constant reminder to the Muslims of JAK That they have still to
merge with the country,
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Abrogation of Article 370 & 35-A
 By the prudential order, On 5 August 2019 at
around 11:30,in the Rajya Sabha, That Union
Home Minister Amit Shah announced the proposal
to revoke Article 370 and 35A in Jammu & Kashmir
under the supervision of Prime Minister
Narendra Modi.
 Now J&K have no own flag
 Now, J&K people have only one citizenship, that is Indian Citizenship.
 There are no more separate constitution.
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Abrogation of Article 370 & 35-A
 Legislative assembly only for 5 years (before 6 years)
 Now all Supreme Court orders are applicable in J&K.
 Now all Indian citizen can buy land in J&K. There will be no more
separate law for the citizen of J&K.
 J&K become union territory with legislature while Ladakh
becomes Union territory without any legislature.
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Challenge to abrogation of Article 370
 A total of 23 petitions challenging the central government’s decision to abrogate
Article 370 of the Constitution, thereby revoking Kashmir’s special status, are
pending in the Supreme Court.
 These petitions were heard by a Constitution bench led by justice NV Ramana last
December and in January.
 Some parties to the case requested the case should be referred to a larger bench of
seven or more judges. This, they argued, was because two earlier Supreme Court
judgments – Prem Nath Kaul (1959) and Sampat Prakash (1968) – are at
loggerheads on the scope and intent of Article 370, and whether the provision was
intended to be temporary, transitory or permanent. Since both judgments were
delivered by benches of five judges, the parties asked the court to refer the matter
to a larger bench.
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PENDING CASES IN SC
 the 5-judge bench refused to refer the pleas challenging the abrogation of Article 370
to a larger bench
 The 5-judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai
and Surya Kant, JJ has refused to refer the petitions challenging the constitutional validity
of the Centre’s move to abrogate Article 370 to a larger bench.
 The Court was hearing the limited issue regarding the reference being made to a larger
bench in the light of the fact that in the case of Prem Nath Kaul v State of Jammu and
Kashmir, after considering the various issues, held that Article 370 was temporary in
nature, however, the subsequent judgment of Sampat Prakash v. State of Jammu and
Kashmir, reversed the aforesaid position, recognizing Article 370 as a permanent provision
giving perennial power to the President to regulate the relationship between the Union and
the State.
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CONT..
 Holding that there is no conflict between the judgments in the Prem Nath Kaul case and
the Sampat Prakash case, the bench said that judgments cannot be interpreted in a vacuum,
separate from their facts and context. Observations made in a judgment cannot be
selectively picked in order to give them a particular meaning. It noted,
 “the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation
or cessation of the operation of Article 370 of the Constitution after the dissolution of
the Constituent Assembly of the State. This was not an issue in question before the
Court, unlike in the Sampat Prakash case where the contention was specifically made
before, and refuted by, the Court. This Court sees no reason to read into the Prem
Nath Kaul case an interpretation which results in it being in conflict with the
subsequent judgments of this Court, particularly when an ordinary reading of the
judgment does not result in such an interpretation.”
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CONT..
 The bench, further, explained that the Court, in the Prem Nath Kaul case, had to determine
the legislative competence of the Yuvaraj, in passing a particular enactment. The enactment
was passed during the interregnum period, before the formulation of the Constitution of
State of Jammu and Kashmir, but after coming into force of the Constitution of India. The
observations made by the Constitution Bench in this case, regarding the importance given to
the decision of the Constituent Assembly of the State of Jammu and Kashmir needs to be
read in the light of these facts,
 “the framework of Article 370(2) of the Indian Constitution was such that any
decision taken by the State Government, which was not an elected body but the
Maharaja of the State acting on the advice of the Council of Ministers which was in
office by virtue of the Maharaja’s proclamation dated March 5, 1948, prior to the
sitting of the Constituent Assembly of the State, would have to be placed before the
Constituent Assembly, for its decision.”
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CONT..
 Explaining the rationale behind such framework, the Court said that as the task of the
Constituent Assembly was to further clarify the scope and ambit of the constitutional
relationship between the Union of India and the State of Jammu and Kashmir, on which the
State Government as defined under Article 370 might have already taken some decisions,
before the convening of the Constituent Assembly, which the Constituent Assembly in its
wisdom, might ultimately not agree with.,
 “Hence, the Court in the case of Prem Nath Kaul (supra) indicated that the
Constituent Assembly’s decision under Article 370(2) was final. This finality has to be
read as being limited to those decisions taken by the State Government under Article
370 prior to the convening of the Constituent Assembly of the State, in line with the
language of Article 370(2).”
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The End
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