Easy way to delete Article 370 and 35A

Articles 370 and 35A have bled this country profusely both literally and metaphorically.

Easy way to delete Article 370 and 35A
Easy way to delete Article 370 and 35A

What is required is the repeal of Article 370 and 35A and fuller integration of Jammu and Kashmir with the rest of India

As per Barbara Tuchman, American historian and author of ‘The March of Folly’“The disasters of history are the results of the government’s folly and perverse persistence in pursuing the policies contrary to national interests.”

And Barbara Tuchman’s said thesis gets confirmed when we see that successive Indian governments’ have retained Articles 370 and 35A in the Constitution though these Articles compromise India’s sovereignty, and have been nurturing separatism, subversion and terrorism for several decades.

like all other princely states which had joined India, Jammu and Kashmir too became the irrevocable part of India because of Instrument of Accession signed by its ruler.

It is deplorable that Kashmir, the crown and the soul of India since times immemorial, the land of Maharishi Kashyap, Lalitaditya, Kota Rani, Abhinavagupta and Kalhan; and an important centre of Hindu heritage has been facing turmoil frequently all because of Articles 370 and 35A.

Article 370 was inserted only as a temporary provision in the Constitution in 1950. And its offshoot Article 35A was inserted on May 14, 1954, by the Constitution (Application to Jammu and Kashmir) Order, 1954 by the Presidential Notification issued under Clause (1) of Article 370, (and without any legislation) in Appendix 1.

This write-up explains the history and vicious implications of Articles 370 and 35A, and how to remove these Articles easily by issuing the Presidential Notification under clause (3) of Article 370 which does not require any voting in Parliament or any Constitutional amendment, whatsoever.

Insertion of Article 370

Before discussing their implications, let us understand how these Articles got inserted in the Indian Constitution.

As per the Indian Independence Act, 1947 passed by the British Parliament, the then British India was partitioned into India and Pakistan in 1947, and the rulers of Princely States were given the option to join either India or Pakistan (by signing the Instrument of Accession which was to be final and irrevocable) or to remain independent.

Rulers of over 560 Princely States opted to join India and signed the Instrument of Accession. However, Maharaja Hari Singh Ji, the then Ruler of Jammu and Kashmir, chose to remain independent. But overwhelmed by the sudden attack on Kashmir by Pakistani Forces in October 1947, he signed the Instrument of Accession on October 26, 1947, which was accepted by India on October 27, 1947.

Thus, like all other princely states which had joined India, Jammu and Kashmir too became the irrevocable part of India because of Instrument of Accession signed by its ruler.

After Jammu and Kashmir ruler signed the Instrument of Accession, Pakistan’s attack on Kashmir was repulsed by the Indian army. But while the Indian army was on its way to get the Pakistan-occupied areas of Kashmir vacated, the then Prime Minister Shri Jawahar Lal Nehru ordered the ceasefire; and took the matter to United Nations. Moreover, despite the misgivings of Constituent Assembly, he got Article 370, the so-called ‘temporary provision’, inserted in the Constitution-ignoring the havoc it was sure to bring.

Even the Governor of Jammu and Kashmir, if he is not a citizen of Jammu and Kashmir, has no right to vote in Jammu and Kashmir.

 

Insertion of Article 35A

Article 35A was inserted by the Constitution (Application to Jammu and Kashmir) Order, 1954 dated May 14, 1954, by a Presidential Notification issued under Article 370. This Notification was added as Appendix 1 to the Constitution of India.

The above-mentioned Constitution (Application to Jammu and Kashmir) Order, 1954 is a lengthy document. It describes many exceptions and modifications with which the Constitution of India applies to the State of Jammu and Kashmir. Section 35A is only one of such exceptions and modifications.

Article 35A empowers Jammu and Kashmir legislature to define permanent residents of the state. Only permanent residents are eligible for special rights and privileges.

Because of Article 35A, only ‘Permanent Residents’ of the State have the right to vote for Jammu and Kashmir assembly, right to acquire immovable property in Jammu and Kashmir, right to settle in Jammu and Kashmir, right to employment under the State government and right to scholarship and right to receive aid from State government.

Separate Constitution, separate Flag and dual citizenship

Articles 370 and 35A have created vicious problems some of which are as follows:

While the Instrument of Accession signed by its ruler Maharaja Hari Singh Ji on October 26, 1947, irrevocably links Jammu and Kashmir with the rest of India, these Articles weaken this link.

Though Preamble of Indian Constitution guarantees to all Indian citizens “Justice”, “Liberty”, “Equality”, and “Fraternity”, Articles 370 and 35A violate every such guarantee.

The root of all problems in Kashmir is the presence of these Articles in the Constitution of India. These Articles have nurtured communalism, separatism, subversion and terrorism in Kashmir; and are also responsible for driving out lakhs of Hindus from Kashmir.

Articles 370 and 35A are discriminatory provisions which give special rights to Indian citizens of Jammu and Kashmir but discriminate against Indian citizens of rest of India. Besides, Indian Citizens of Jammu and Kashmir can acquire property and settle in the rest of India but Indian citizens of the rest of India cannot acquire property and settle in Jammu and Kashmir.

These provisions violate the concepts of secularism and nationalism.

These Articles deprive Indian citizens in the rest of India of their Fundamental Rights stipulated in Article 14 (right to equality) and Article 19 (right to freedom).

Because of Article 370, Jammu and Kashmir have its separate constitution and its separate flag. In Jammu and Kashmir, national flag must be hoisted with the state flag.

Indian citizens in Jammu and Kashmir have dual citizenship: one of India and the other of Jammu and Kashmir. But citizens of the rest of India cannot be citizens of Jammu and Kashmir.

Even the Governor of Jammu and Kashmir, if he is not a citizen of Jammu and Kashmir, has no right to vote in Jammu and Kashmir.

Because of these provisions, even the President or Prime Minister of India, if he is not a permanent resident of Jammu and Kashmir, cannot purchase any immovable property in Jammu and Kashmir. Moreover, though any person from Jammu and Kashmir can settle anywhere else in India, no person from rest of the country can settle in Jammu and Kashmir.

Moreover, these Articles curtail Indian Parliament’s sovereign powers over Jammu and Kashmir in many matters.

Deletion of these Articles would mean one nation, one citizenship, one flag and one constitution for entire India including Jammu and Kashmir for which patriots like Dr. Shyama Prasad Mukherji lived and died

 

The only solution

Articles 370 and 35A have bled this country profusely both literally and metaphorically.

Drastic situations demand drastic solutions. No independent nation can compromise its sovereignty.

The injury India is suffering in Jammu and Kashmir is self-inflicted since though Article 370 inserted in the Constitution in 1950 begins with the words, “Temporary provisions with respect to the State of Jammu and Kashmir”, it is being retained even in 2019.

But the problem in Kashmir cannot be solved by politics of appeasement or by the Prime Minister’s special aid package of Rupees 80,000 crores sanctioned in 2015 for Jammu and Kashmir. This problem can be solved only by treating Jammu and Kashmir State like the other States of India.

What is required is the repeal of Articles 370 and 35A and fuller integration of Jammu and Kashmir with the rest of India in keeping with the unanimous February 22, 1994 Resolution of Indian Parliament which reiterates Jammu & Kashmir to be an integral part of India, and demands vacation of Pakistan-occupied Kashmir.

How to repeal these Articles?

Article 370 can be repealed easily by the Presidential Notification under clause (3) of Article 370. And the said Notification can be issued on the basis of the Government Resolution, also known as Cabinet Resolution, and does not require any voting in Parliament or any Constitutional amendment, whatsoever.

It is relevant to reproduce here Clause (3) of Article 370 as follows:

“370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Article 370(1) in The Constitution Of India 1949 

(2) Article 370(2) in The Constitution Of India 1949

(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.”

It is relevant to note that proviso to Clause (3) of Article 370 requiring the recommendation of the Constituent Assembly of Jammu and Kashmir before the issue of Presidential Notification has become redundant and unnecessary because, on January 25, 1957, the Constituent Assembly of Jammu and Kashmir had been dissolved. Since no such Constituent Assembly exists now, restriction mentioned in Clause (3) cannot operate.

Along with the abolition of Article 370, the above-described Constitution (Application to Jammu and Kashmir) Order, 1954 dated May 14, 1954, which also contains Article 35A, and which was issued by a Presidential Notification under Article 370 should also be abolished by the Presidential Notification under Clause (3) of article 370.

What must BJP do?

Articles 370 and 35A are monumental symbols of national ineptitude and slavery of fake secularism.

After getting power in 2014, BJP has done nothing to fulfil its perpetual promises regarding “justice to all and appeasement of none”, Uniform Civil Code, the abolition of Article 370, rehabilitation of Kashmiri Hindus in Kashmir, same rights and same laws for all Indian citizens irrespective of their religion etc. etc.

Even in the remaining few weeks of its tenure, BJP government can regain its credibility by honouring at least one of its core promises by immediately abolishing the patently unjust, perverse, discriminatory and self-destructive Articles 370 and 35A.

Deletion of these Articles would mean one nation, one citizenship, one flag and one constitution for entire India including Jammu and Kashmir for which patriots like Dr. Shyama Prasad Mukherji lived and died.

And this deletion would start liberation of India from the slavery of pseudo-secularism.

I conclude this piece with the Sanskrit adage Tatha Astu.” (Let it be so).

Note:
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

J. G. Arora

J.G. Arora,

M.A. LL.M., Advocate

Latest posts by J. G. Arora (see all)

27 COMMENTS

  1. Theory vs Practice. In theory, it is possible to repeal, revoke, invalidate, abolish, nullify, or abrogate Article 370. But, Indian Prime Minister Nehru encountered the realities of this world. The global powers like the United Kingdom and the United States are totally opposed to the emergence of the Republic of India as a regional power on account of its size and population. The global powers are not satisfied with the dismemberment of British India and they still favor reducing the territorial dimensions of India for they take into account the size of the Indian population. Their State Policy is based upon the theory of Balance of Power. In my analysis, the West would prefer to dismember India even if India forges a strong military alliance with them. The emergence of the PRC as a superpower has only added to India’s troubles. From the beginning, India remained deeply concerned about the dangers of defending the Himalayan Frontier. India pursues the policy of appeasement out of necessity.
    As of today, the BJP is not able to change the course of Indian Foreign Policy as our external relations are only a source of worry and not of strength. Indians have to unite as a nation to withstand the challenge posed and fight against their adversaries while still trading with them to ensure the economic activity needed to feed our population.

  2. Equality enshrined in our constitution is violated blatantly; funds meant for SC/ST is sucked dry by one state alone besides funds to afghan jihadis – 3 bil annually. Percapita union funds for UP- 4.5k; for kashmir=92k
    We cant settle in JnK but they can. They can rob our freedom, jobs, lands, girls, army lives, etc. They have absolutely no power to prevent this travesty.

    What an inequality?

  3. Indian political leadership is ignorant or foolish what evidence do they need about the Muslim fundamentals it’s in their religion they want to destroy humanity. No excuses if humanity is to survive leadership has to think in terms of humanity or Islam

  4. I think 35A and 370 article have been presented as a special gift to state of J& K by Nehru for only keeping
    S Abdullah in a good mood and keep Nation bleeding only to harm dignity of Maharaja Hari Singh ji. I sincerely hope first 35A- will be gone soon. Article370 will meet the same fate after some time. BJP should feel proud in doing so as it was hallmark of its policy toward complete National Integrity. It will be a welcome step by all patriotic people of this Nation.

  5. Dear Friends,

    Many of us fully agree to Shri-Arora ji ‘s article. But there should be some ground preparation for it. The
    parasites in Kashmir will be in rude shock & also react harsh to all this. First we need a long term strategy to
    resolve Kashmir issue which has to be accepted by all political parties and no change to it. There is no option than to be harsh & copy the Chinese style of administration. Pakistan has to face some sought of Kashmir Refugee problem from the districts that support extremists and throw stones.When they start paying for the people , even a minor refugee crisis will kill pakistan economy & these innocent people throwing stones will see the real face of pakistan when they refuse to accept refugees from Kashmir. On the parallel – India has to help Afghan to build up a small Airforce with maybe few Tejas fighters. Once Afghan forces are strengthened they can hit Taliban or atleast keep them engaged – who will otherwise be used by Pakis to attack J&K. We cannot change pakistan’s behaviour but we can compel them to increase the cost factor which will ruin them economically. Moreover we have to make the Kashmiris understand that Pakistan no longer needs Kashmir -It is China which will value the real estate and kashmir will never be “Azaad” as they are dreaming. If Kashmiris want to retain their culture & identity – India is the best bet for them.

  6. I was a young teenager growing up London in the 1980s, when I first heard of Article 370 and the plight of the Kashmiris, Kashmiri Pandits.There were calls to repeal Article 370. There used to coverage of the Kashmiris on the BBC..mostly the Muslim Kashmiris.
    Soon after I heard of the the Kashmiri Pandits in refugee camps.They were not discussed by the BBC.
    Its now 40 years later and its 2019 , and I and still hearing of Article 370, and talk of repealing it.
    The world has changed a lot, but this talk continues.
    He Bhagwaan.. agle janam tak aisa hi chalta rahega?
    PS There also used to be talk of building a Ram Mandir in Ayodhya as well.

  7. Either India is weak or BJP is weak. That is why there has not been any decisive action on this front. There has been enough discussion on this topic. It seems to me that things such as bullet train, or gas connection satisfy the people of India well enough.

    Not many seem to mind if a few Hindus get murdered in Kerala or Tamil Nadu; or if Kashmiri pandits spend miserable life in the squalid camps known as Aurangzeb’s dream..

    Things don’t move because we are happy with the status quo; we are happy with present businessmen who are leading the country.

  8. Repeal of 370 and 35A would mean Whole of Kashmir will belong to India. That also means PoK will become POI or Pakistan occupied India. This will immediately force India into a War with Pak. Is the PM, BJP, Indian Army and people of India ready for that?

  9. Excellent method to annul and abort due to excessive human costs, material costs, and constant threat to Nat’l sovereignty from savage violence instigated by barbaric fascist regime next door. Let me quote, “the President may, by public notification, declare that this Article shall cease to be operative ..”

    Brilliantly practical solution to all the issues bleeding us by 1000 cuts. Every Indian needs to be grateful to Shriman Arora-ji!

  10. History & the Process of removal of illegal article 370 & 35 A well explained.

    This was the biggest act of Rashtra Droh by Nehru.

    1.3 Billion Indians should remember that Kashmir is only 15% of the land area of J & K.

    The Small percentage of Kashmiri population brainwashed by Pakistani Jihadi bigots & holding the nation to ransom is not even 0.02% percent of our population.
    So nationalist forces can easily take care of any disurbance created by them.

    AB Vajpayee ji showed courage and declared India a nuclear state despite stiff opposition by the entire world.

    Will Narendra Bhai Modiji show similar statesmanship &
    Delete these acts.The entire Nation will stand behind him …

  11. Great write up, the author has clarified the confusion created by Anti national, pro jihadi, break India forces regarding articles 370 & 35 A.

    Professor Madhu Purnima Kishwar ji has suggested 3 simple changes needed to bring peace to J&K:

    1. Send all Pak propped secessionists including Jehadi Mehbooba & Abdullahs to jails in far away states:

    2. Scrap Article370 & Article35A;

    3. Trifurcate J&K & establish Panun Kashmir+Sainik Colony in the Valley.

  12. Easy way to delete Article 370 and 35A. Good and timely post.Thanks to J.G Arora ji.
    If the Dynasty lead Congress-O is worse, BJP is bad.
    Incumbent government mindset is that of UPA 1 & 2 and Vajpayee’s regime, except some developmental projects, no scams and good decision making.
    BJP forgot core issues propagated since 1947 as Jana Sangh then and now as BJP for four decades. During AB Vajpayee’s regime we were told that for the first time a “nationalist” government came to power with 23 allies and let complete its full term.Shining India campaign send them out of power.
    In 2014, we thought PM Modi with 282 MPs on its own would form a core committee to look into 65 years of JK issue,Unemployment and Black Money and send all crooks to Jail. Just a month is left, everyone knows the “status” on all core issues.

    Ground realities, pollsters,astro pundits indications,BJP now accommodating all its allies and trying for new allies points towards a shortfall in seats to form the Government. In this scenario, Presidential Order on deleting Article 370 and 35A will give BJP 300+ seats on its own and NDA will cross 400+. War without 4th or 5th generation fighter jets is of no use…delaying elections.
    We can not predict PM Modi’s mindset with his average PMO performance except, Ajit Doval’s excellent performance and Amit Shahs’ overconfidence,arrogance, disrespecting people sitting on dais is a different ball game. Both has given an elbow room to Pappu to come up and challenge with maha-thugs-bandhan and becoming financial sound again.

  13. Lawfully speaking,  Presidential order named Article 35A is not an article of the Constitution. It has not acquired the force of constitutional amendment as per the law.
    Provisions of so called Art35A merely come from a Presendial order in concurrence with Govt of Jammu & Kashmir. This presidential order was said to be given under the power conferred on the President by the temporary Article 370.
    But contrary to the above said power, an  *”Explanation’  given Artcle 370 defines the state govt of J&K as the person recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers.* Since the said Maharaja rule got over long back and even the abdicated Maharaja Hari Singh had died in 1961,  the Art370 by its definition became VOID latest by 1961.
    The constituent assembly also had not expressed any documentary intention to make Art 370 as permanent until it got dissolved in 1957.
    The provisions of the Presidential Order named Art35A on it’s own, became ineffective and ultra virus.
    The Central Government continued the providprov of annulled Presidential order  35A were continued as some political and moral obligation without any force of Statute.

    The provisions of said Presidential order are derogatory to respect of a class of  society called Dalit or oppressed class and derogatory to the women. The  above said order naned 35A gas lost its validity as Art370 has completed its life and became OTIOSE or ineffective.
    Mere repeatetive statements by the Govt that Art370 wont be touched can not restore the auto invalidated Article 370.

    Now the Govt has to take a brave stand to tell this truth to the nation. A Presidential order in concurrence with the present state government under Governor of J&K by proclamation or notification has to inform the nation that unlawful and unconstitutional provisions of the old Presidential order named 35A being derogatory to the sovereignty of the state shall be withdrawn as those provisions do not have any sanction of any new Presidential order. The last order named Art 35A had lost its force along with Art370 in 1961.

    In the past, in the year 1975, the the Prime minister had indirectly signed *Indira – Sheikh accord-1975″ with Sheikh Abdullah, who had remained in prison from 1953 to 1964 and had faced the trial on the charges of sedition. Just when the honourable High court was about the pronounce the punishment of Death sentence or Life imprisonment, Nehru had taken the case back. This accord with Abdullah not in any official capcity was absolutely illegal and with malicious political intention to make Abdullah CM of J&K very next day of signing on 25th Feb 1975.
    This doesn’t mean he was freed from all the charges.
    Before that accord , it was agreed 23 times by the Parliament thst J&K is integral part of India and Art370 had been forgotten.
    The above said unlawfull, unofficial accord not even signed personally by Indira and Shrikh, tried to revive the self invalidated Art370 illegally as it was an unconstitutional effort derogatory to the sovereignty of the state.
    Now if any such  proclamation of President  that Art370 and the said Order named Art35A had been self revoked in 1961 comes, the President then onwards will not be empowered to make any such new order as the power conferred on him by revoked Art 370 will have no statutory force.

  14. why link vacation of POK as precondition for the abolition of Art 370 and 35A? Vacation of POK involves war which is a serious business. However abolition of these Articles does not involve war . A just president’s proclamation would do the job. By linking to Vacation, the intention is to perpetuate the existence of these Articles.

  15. Delete illegal articles 370 & 35 A that have caused Hindu genocide in Kashmir & fostered brutal Islamic Jihadi terrorism in Kashmir.

    Resettle the million Hindus brutally evicted & robbed of their assets by Islamists.

  16. Great Article & Last reminder to the nationalistic Government that there is still some time left in which they must take action to remove these illegally added acts.

    BJP must act on this promise to the nation its manifesto promise to ensure thumping majority in 2019.

  17. The author has shown the way forward.
    With just a few weeks left in its tenure…The BJP Government should fulfill it’s promise to the nation to abrogate these illegally added articles 370 & 35A immediately.

    It will integrate Kashmir with India & help the Kashmiris escape from the tentacles of Jihadi barbarianism.

  18. Modi was served Pulwama on a platter by the Pakis. He needed to retaliate with 50x force, tear up Article 370, Article 35a and shut-off Indus water immediately. Instead all we got was talk, tall talk and more mealy mouthed nonsense from the BJP bozos. Frankly, there is no difference between the Congi traitors or the self proclaimed good-for-nothing nationalists. Modi blew it big time. He deserves to lose. Brace for clown Rahul as the next PM.

    • Correct. Modi’s NDA is only a cleaner version of UPA. Those Hindus who thought Modi would curb anti-Hindu/anti-national forces have been taken for a ride. And I should also mention Ram Madhav here – another big Hindu drohi.

  19. This article is a timely reminder to BJP government to fulfil its important commitments to the nation. BJP must delete Articles 370 and 35A to give a lasting solution for the problems of separatism and terrorism created by these Articles.

  20. It is an excellent article. It gives complete information regarding Articles 370 and 35A, their implications and the way to abolish these articles by the Presidential Notification. Since these Articles have already done massive damage to the nation, BJP government must abolish these Articles at the earliest. BJP government has already wasted over four years of its precious tenure without fulfilling any of its core pre-election promises regarding uniform civil code, same rights and same laws for every Indian citizen irrespective of his religion, abolition of article 370 and rehabilation of Kashmiri Hindus in Kashmir. BJP government should at least abolish Articles 370 and 35A and bring Jammu and Kashmir State at par with other States. And this would be in the best interests of the nation as also of Jammu and Kashmir State.

  21. Good post,
    But vacate pakistan from pok which GOI had promised.
    Then join the whole territory of kashmir, do a plebiscite _ give kashmiris their birth right then abrogate all articles and provisions which give special status to kashmir….
    #UNSC kashmir resolution

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