What Is the Difference between Article 370 and 35A

For about 600 princely states whose sovereignty was restored through independence, the law provided for three options: remain an independent country, join the Dominion of India, or join the Dominion of Pakistan – and that membership in either country had to be done through an IoA. Although no prescribed form had been provided, a State that had acceded to it could indicate the conditions under which it agreed to accede. The maxim for treaties between States is pacta sunt servanda, i.e. promises between States must be kept; In the event of a breach of contract, the general rule is that the parties must return to the original position. Article 35A of the Indian Constitution was an article that empowered the legislature of the state of Jammu and Kashmir to define „permanent residents” of the state and grant them special rights and privileges. [1] It was added to the Constitution by a Presidential Decree, i.e. the Constitution (Application to Jammu and Kashmir) Order 1954 – issued by the President of India under Article 370. [2] The State of Jammu and Kashmir has defined these privileges as the ability to purchase land and real estate, the ability to vote and contest elections, the search for employment in government, and the use of other state services such as higher education and health care. Non-permanent residents of the state, even if they were Indian citizens, were not entitled to these „privileges.” 2. What was the legal and constitutional status of Kashmir before the repeal of Article 370? Article 370 of the Indian Constitution is described as a „temporary provision” granting the state of Jammu and Kashmir special autonomous status within the Indian Union.

In accordance with Article 370(1)(b), the Parliament of the Union may legislate for the State only `in consultation with the State Government` in certain matters provided for in the Instrument of Accession, namely defence, foreign affairs and communications. Other issues on the legislative lists can only apply to Jammu and Kashmir with the „consent of the state government” by a presidential decree. Article 370, paragraph 1 (d), provides that other constitutional provisions may be applied to the State from time to time, „subject to such modifications or exceptions” made by the President of India, including by order of the President, provided that they do not fall within the scope of the above-mentioned matters and except with the consent of the State Government. On 5 August 2019, the President of India issued the Constitutional (Application to Jammu and Kashmir) Order, C.O. 272, under Article 370(1) of the Indian Constitution. Constitutional law expert Gautam Bhatia says this „forms the basis of all of the following.” The Ordinance states that with the „consent of the Government of the State of Jammu and Kashmir”, „the provisions of the Constitution, as amended from time to time, shall apply to the State of Jammu and Kashmir”. Furthermore, since the Government could not rely directly on Article 370, paragraph 3, to repeal other articles, it sought to use the powers conferred on it by Article 370, paragraph 1, to amend Article 367, the interpretative clause of the Constitution, so that the references to the „Government of the State [Jammu and Kashmir]” in Article 370 would be interpreted as the Governor of Jammu and Kashmir (Article 2). and the term „State Constituent Assembly” in Article 370(3) is interpreted to refer to the current Kashmir Legislative Assembly.

The Ordinance also provides that it will „replace the Constitution (application to Jammu and Kashmir) of 1954” and thus also repeal Section 35A. Article 35A, which results from Article 370, was introduced by a presidential decree in 1954. This article authorizes the legislature of occupied Kashmir to define permanent residents of the state and their special rights and privileges. The process of partitioning British India was regulated by the Indian Independence Act of 1947. The princely states were not directly incorporated into one of the two dominions, and paragraph 7(1)(b) of the Act provided that Her Majesty`s „sovereignty” over those states had expired and that their powers had been restored to them. Theoretically, they were given the option of remaining independent or joining one of the two seigneuries. However, as described in a newspaper article: „Without British forces available to defend them, independence was not a real option for the princely states, many of which were quite small. States were encouraged by the viceroy at the time, Lord Mountbatten, to adhere to one rule or another” and did so on the basis of their geographical position, religious identity or other factors.

The ruler of Kashmir, Maharaja Hari Singh, hesitated between joining one of the two dominions and deciding to remain independent and neutral at the time, as mentioned in another article: Before 1947, Jammu and Kashmir was a princely state under British superiority. The peoples of the princely states were „subjects of state”, not British colonial subjects. [4] In the case of Jammu and Kashmir, political movements in the state led to the early 20th century. ==References=====External links===* Official website In particular, the Pandit community had launched a „Kashmir for Kashmiris” movement, which demanded that only Kashmiris be employed in jobs within the state government. Legal provisions for recognition of status were issued by the Maharaja of Jammu and Kashmir between 1912 and 1932. The Hereditary Subjects of the State Ordinance of 1927 granted subjects of the State the right to governmental positions and the right to use land and property that were not accessible to non-State subjects. [5] [6] The article allows the local legislature of Indian-administered Kashmir to define permanent residents of the region. Explained: Here`s what has changed in Jammu and Kashmir This article explains some of the controversies surrounding the recent revocation of the special constitutional status of the state of Jammu and Kashmir under Article 370 of the Indian Constitution and the repeal of Article 35A, which had allowed the state to define permanent residents of the state and certain special rights and privileges, associated with such a stay.

It also includes a brief history of the dispute, the legal steps taken to revoke the special status, and the legal challenges to this decision. Permanent residents of Jammu and Kashmir enjoy special rights under Article 35A. The Constitution (Application in Jammu and Kashmir) Order 1954 was issued by President Rajendra Prasad under Article 370 on the advice of the Union Government led by Jawaharlal Nehru. [12] [11] It was promulgated as a result of the „Delhi Agreement of 1952” between Nehru and the then Prime Minister of Jammu and Kashmir, Sheikh Abdullah, which dealt with the extension of Indian citizenship to the „state subjects” of Jammu and Kashmir. [12] [11] [13] The section, known as the Permanent Residents Act, also excludes residents of Jammu and Kashmir from property rights if they marry a person from outside the state. This provision also applies to the children of women. This article was incorporated into the constitution in 1954 by order of then President Rajendra Prasad on the advice of Jawaharlal Nehru. The article, which came into force in 1949, exempts the state of Jammu and Kashmir from the Indian constitution. According to this article, with the exception of defence, foreign affairs, finance and communications, the Indian Parliament requires the consent of the state government to apply all other laws. Residents of occupied Kashmir therefore live under a separate set of laws compared to Indian citizens elsewhere in the country, including those relating to citizenship, property and fundamental rights. On the same day, India`s upper house passed a legislative resolution recommending that the President of India repeal most of Article 370 in accordance with Article 370(3). The next day, August 6, the president implemented the resolution and revoked the special status of Jammu and Kashmir by Presidential Decree C.O.

273, which stipulated that from August 6. August 2019 „all clauses of said Article 370 are no longer in force” and that „all provisions of this Constitution, as amended from time to time, apply without amendments or exceptions to the State of Jammu and Kashmir”. According to media reports, the Supreme Court of India is hearing fourteen petitions in the public interest on Jammu and Kashmir. Some of the petitions concern the challenge to the repeal of Article 370 and the special status of Jammu and Kashmir. The court is also hearing a series of motions „calling for an end to the restrictions on movement and communication imposed in the Kashmir Valley.” On August 28, 2019, the Supreme Court of India said a five-member bank would hear motions filed to challenge the validity of the government`s decision to revoke the special status granted to Jammu and Kashmir under Article 370. Over the years, the region has been involved in numerous border skirmishes, a high-altitude war in 1999 (known as the Kargil conflict) between countries, and a Pakistan-backed insurgency in Jammu and Kashmir that has been in place since 1988. Currently, the Indian government claims that Jammu and Kashmir is „an integral part of India and is a matter within India” and that any dispute with Pakistan should be resolved bilaterally. Pakistan, on the other hand, considers that India`s recent measures constitute a „violation of the United Nations”. Security Council resolutions on Kashmir and Pakistan-India bilateral agreements such as the 1972 Shimla Agreement and the Lahore Declaration” and wishes to internationalize the dispute in a global forum. On the 16th. In September 2019, according to press reports, the Supreme Court granted the request of the Jammu and Kashmir People`s Conference (JKPC), a political party in the state that questioned „the president`s rule imposed in the state and the repeal of the provisions of Article 370,” but refused to deal with new petitions against the Article 370 ordinance.