Genesis of Articles 370, 35A & Delhi Agreement

Brig Anil Gupta

The political scene in Kashmir is once again on the boil. Statements made by Mehbooba Mufti, J&K CM and President of PDP, during the curtain raiser and Founders Day Celebrations in Srinagar have once again brought to fore the contentious issue of Special Status of the state with particular reference to Articles 370 and 35A of the Constitution of India. These two articles have often been used by the separatists, soft separatists and the mainstream politicians of the Valley to create a public hysteria and threaten the nationalist forces that advocate complete integration of the State. While making loud political noises these leaders often forget that they do not represent the sentiments of the entire population of the state and their rabble-rousing is confined only to the Kashmiri speaking districts of Kashmir province. Not to be left behind, Omar Abdullah also joined the race and added another dimension by stating that, “How can you debate special status of Jammu and Kashmir without discussing accession? You can’t. They are two sides of the same coin. J-K acceded to India on the special status that was granted to it”, leading to a bout of statements and counter statements. The media channels naturally were not to be left behind. But what astonished was the standard of debates that lacked in-depth knowledge with regards the issues at hand and inparticular the understanding of the contentious Articles 370 and 35A.
Article 370
It is a well- established fact that when the rulers of the Princely states signed the Instrument of Accession, they surrendered legislative, judicial and executive control of three subjects – Defence, Communication, External Affairs and Ancillaries.  The same is true in respect of the Maharaja of Jammu & Kashmir as well. This implied that the princely states would have the right to decide upon policies, implementation and administration with regard to other issues, through such arrangements as Royal Proclamations or a separate Constitution for their respective kingdoms/states. However, in the process of integrating these states into the Indian Union, Sardar Patel successfully persuaded the rulers of these states to accept the Constitution of India in toto.
The Princely states acceding to India thus accepted the Indian Constitution totally, except the state of Jammu and Kashmir.  Patel was intentionally kept away from dealing with that state by Nehru whose loyalty rested with Sheikh Mohammed Abdullah who had revolted against the ruler of the state. Sheikh Abdullah finally managed to hound the Maharaja out of the state and started negotiating individually with Nehru.
The ground reality in J&K was different from the other princely states. The state was under attack from Pakistan. Indian  Army was fighting to throw back the invaders. Though a UN sponsored ceasefire was enforced on 01 January 1949, parts of the state’s territory were still under Pak’s occupation. Nehru unilaterally referred the Kashmir Issue to United Nations, adding an international dimension. The situation was fluid. Sheikh did nominate a 4-member team to the Indian Constituent Assembly.  They declined to sit in the Assembly but negotiated from outside the status of Jammu & Kashmir viz a viz the Indian Union.  They insisted on acceding only those three subjects to the Union that were included in the Instrument of Accession. In the words of Ayyangar, Nehru’s confidant and drafter of Article 370,  “ultimately the will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.”
Due to the prevailing situation in the state, Constituent Assembly could not assemble. Thus, when rest of the nation was readying to adopt the Constitution of India, there was a constitutional vacuum in the state. To fill this vacuum Article 370 was inserted in the Indian Constitution, in the hope  that J&K would, once the situation normalises,  integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article). The terms of Article 370 were negotiated by the Kashmiri Muslims keeping only their interest and sentiments in mind while completely ignoring the sentiments and aspirations of the people of Jammu &Ladakh whose combined population was greater than that of the Kashmiri Muslims.
Article 370 thus defined the applicability of the Constitution of India in part in the state of J&K till the constitution of the state is finalised. Article 370 was only an additional legislative mechanism to facilitate this transition.It is very important to note that in 1950, the Government of India clarified the effect of Article 370 in a white paper on Indian states which among other included the following:-
*    Constituent Assembly will be convened to go into the matters in detail.
*    When the assembly will come to the decision on all the matters, it will make a recommendation to the President who will either abrogate article 370 or direct that it shall apply with such modification and exceptions as he may specify.
The Constituent Assembly was elected in October 1951. National Conference & those sympathetic to it won all the seats unopposed due to boycott by the Praja Parishad, main political party of Jammu. Constituent Assembly met for the first time on 31 October 1951. It was criminal culpability on the part of Nehru that he or his Home Minister did not stipulate any conditions for the state constitution, had no say in the terms of reference of the state constituent assembly and did not insist on representatives as observers of the proceedings in the state constituent assembly to ensure that the state constitution was in line with the basic structure of the Indian constitution.
Delhi Agreement 1952
However, it was evident that the Constituent Assembly would take its time in the production of a definitive document. Meanwhile Nehrudecided to obtain from Sheikh Abdullah, some interim based definition of the kind of relationship between the Indian Union and the State of J&K that would emerge in due course.A series of negotiations were held in Delhi between the representatives of J&K (representing National Conference) and the Government of India. The results of the negotiations were finally announced in form of a document on 24 July 1952, known as Delhi Agreement. It should be noted that it had no constitutional validity.
Article 35A
In February 1954, Constituent Assembly ratified the State’s accession to India. Thus, the assurance given to the people of India was fulfilled. 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 Delhi Agreement. Sections 2(3) and 2(4) of the Order made Part II of the COI dealing with Citizenship and Part III dealing with Fundamental Rights applicable to the State of J&K. However, it conferred powers to the State legislature to make special provisions for the permanent residents of the State and for that purpose Section 2(4)(j) of the Order inserted Article 35A in the Constitution. Thus, contrary to popular belief it is the Presidential Order 1954 and Article 35A leading in turn to the State Constitution that provide special status to the State and debar other Indians from acquiring property in the State.
The modification made to Article 35, the inclusion of Article 35 A and the fact that Articles 12 to 15 of the Indian Constitution do not apply to the state of J&K must be studied together to understand why the J&K constitution is an attack on the secular and democratic values of India and shows thumb to the COI. The Right of Equality, bed rock of democracy, has been sacrificed and adding salt to the wounds is the denial of judicial redressal for the non-permanent residents residing in the state.It is this defiance of the basic spirit of the Indian Constitution which has been sanctified and legitimised as Article 35 A about which not many people know since it has been inserted as an Appendix and which is not a part of the official text of the Constitution.It was never presented before the Parliament as the sole authority to amend the Constitution is vested only in the Parliament of India.  It is also quite astonishing that Sheikh and his National Conference, main architect of the State Constitution, who were determined to abolish all symbols of Dogra Rule were very keen to retain the State  Subject  Act 1927 enacted by the Maharaja.
Article 35 A categorises non-permanent residents of  J&K as second rate citizens since they cannot buy immovable property in J&K, are not eligible for employment by the state government, cannot contest or vote in local body or Assembly elections, cannot avail of scholarships and other grants offered by the state government to its permanent residents and above all cannot seek redress in any court, local or national. This then is the reason why there is little or no economic or industrial development in the state. No businessman or industrialist from the rest of India is willing to invest a rupee in a state which will not allow him to own property there.The state suffers from lack of adequate tourism infrastructure, backbone of its economy. J&K, thus, is mainly dependent on Government of India funds to meet all its expenditure.
This has added particularly to the woes of the West Pakistan refugees, the Valmikis and Gorkhas who have been staying in the state for generations but have been denied the Permanent Resident Status and the attendant benefits. It also smacks of gender inequality since it violates the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man non state subject.
Article 35A is acting as a hindrance in holistic development of J&K, affecting every sector. The present situation is such that there is dearth of faculty in Engineering and Medical colleges, IIT, IIM and IIMC. No professors from other states want to teach in Jammu and Kashmir because they cannot purchase a house for themselves there, their children cannot get admission in professional colleges and no Government jobs for their children.
The states constitution was finally adopted on 26 January 1957.  But the Constituent Assembly dissolved itself without recommending abrogation or otherwise of Article 370. Nehru did not raise any concern. Hence it is of paramount importance that temporary provisions made to mitigate a volatile situation must not be allowed to acquire permanency just to appease a certain segment of the population and legalize discrimination as is being done in J&K.  Jammu and Kashmir is a part of India due to accession that took place in 1947 and not Article 370 that came into effect only in 1949.Since the issue is subjudice and has been referred to a Constitution Bench, it would not be in order to comment on legality of these discriminatory provisions of the Constitution. Let the reader judge their implications and court decide their legal validity.
(The author is Jammu based political commentator, columnist, security and strategic analyst)