 The Bill was passed by the Upper House through a voice vote, with 125 being in favour

and 61 against it and there was also one abstention

 Speaking in the Upper House, Union home minister Amit Shah said: “Because of Article
370, democracy has never percolated, corruption was at its peak and poverty was
entrenched in the area. There are people of different religions in the valley and we are
not politicizing on the basis of religion. The people of J&K want democracy and if you
see clearly you will know how much Article 370 has harmed J&K."
 Addressing the members of Rajya Sabha, Amit Shah said, “Repealing Article 370 is the
only way out to resolve the crisis and deadlock in Kashmir. It will take some time, but
this is the only way."
 Shah also added that no legal scrutiny could nullify or dilute the efficacy of the Bill,
adding that it was imperative for Article 370 to be abrogated in order to eradicate
terrorism from the region.
 The Bahujan Samaj Party (BSP), All India Anna Dravida Munnetra Kazhagam (AIADMK),
the Biju Janata Dal (BJD), Shiv Sena and YSR Congress Party unequivocally extended
their support to the scrapping of Article 370 saying that “In the true sense today Jammu
and Kashmir has become a part of India."
 However, Shah hit out at Azad saying, “This is not the truth. Article 370 has not linked
J&K to India. It has only alienated J&K from the country. Only three families have looted
the state and have benefited from it. The country wants to know why Article 370 was
extended for so long, why people did not benefit from reservation, why so much money
was pumped into J&K but why are the people still poor? Not a second should be wasted
in removing article 370 from Jammu and Kashmir."
 Ghulam nabi azad said that now after scrapping 370 and 35a ,BJP has murdered the
constitution
 The Rajya Sabha passed a bill on bifurcation of Jammu and Kashmir and approved a resolution on
scrapping of Article 370
 While the BJP has 78 members in Rajya Sabha, it got support from parties like AIADMK, BJD,
BSP, Shiv Sena and AAP
 Its ally JD(S), however, did not support the move
 Opposition parties like the Congress, TMC, DMK, NCP, RJD, CPI, CPM and RJD opposed the
legislations</li></ul></div><div

Article 370 of the Constitution of India

Article 370 of the Indian constitution gave special status to Jammu and
Kashmir—a state in India, located in the northern part of the Indian
subcontinent, and a part of the larger region of Kashmir, which has been
the subject of dispute between India, Pakistan, and China since 1947[1][2]
—conferring it with the power to have a separate constitution, a state flag
and autonomy over the internal administration of the state.[3][4] The
government of India revoked this special status in August 2019 through a
Presidential Order and the passage of a resolution in Parliament.

The article was drafted in Part XXI of the Constitution: Temporary,

Transitional and Special Provisions.[5] The Constituent Assembly of
Jammu and Kashmir, after its establishment, was empowered to Map of the British Indian Empire. The
recommend the articles of the Indian constitution that should be applied princely states are in yellow.
to the state or to abrogate the Article 370 altogether. After consultation
with the state's Constituent Assembly, the 1954 Presidential Order was
issued, specifying the articles of the Indian constitution that applied to
the state. Since the Constituent Assembly dissolved itself without
recommending the abrogation of Article 370, the article was deemed to
have become a permanent feature of the Indian Constitution.[6][7]

This article, along with Article 35A, defined that the Jammu and
Kashmir state's residents live under a separate set of laws, including
those related to citizenship, ownership of property, and fundamental
rights, as compared to resident of other Indian states.[8] As a result of
this provision, Indian citizens from other states could not purchase land
or property in Jammu & Kashmir.[9] The territory of the princely state of Jammu
and Kashmir: divided between Pakistan
On 5 August 2019, President Ram Nath Kovind issued a constitutional (green), India (blue) and China (yellow)
order superseding the 1954 order, and making all the provisions of the
Indian constitution applicable to Jammu and Kashmir.[10][11][12]
Following the resolutions passed in both houses of the parliament, he issued a further order on 6 August declaring all the clauses
of Article 370 except clause 1 to be inoperative.[13]

In addition, the Jammu and Kashmir Reorganisation Act was passed by the parliament, enacting the division the state of Jammu
and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of
Ladakh.[14][15][16] The reorganisation is scheduled to take place on 31 October 2019.

Contents
Purpose
Original text
Analysis
 Presidential orders
Presidential order of 1950
Presidential order of 1952
Presidential order of 1954
Further presidential orders (1955–2018)
Autonomy of Jammu and Kashmir: Structure and limitations
Applicability of the Indian law to Jammu and Kashmir
Constitution of Jammu and Kashmir
Human rights

Education and employment rights

Women's rights
Calls for abrogation
2019 actions
Presidential order of 2019
Change of status of Jammu and Kashmir
See also
Notes
References
Bibliography
External links

Purpose
The state of Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs
and communications. All the princely states were invited to send representatives to India's Constituent Assembly, which was
formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states.
Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and
Mysore. Even though the States Department developed a model constitution for the states, on 19 May 1949, the rulers and chief
ministers of all the states met in the presence of States Department and agreed that separate constitutions for the states were not
necessary. They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies
suggested a few amendments which were accepted. The position of all the states (or unions of states) thus became equivalent to
that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state
governments was uniform across India.[17]

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly[18] requested that only those provisions of the
Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State and that the state's
constituent assembly, when formed, would decide on the other matters. Government of India agreed to the demands shortly
before the above meeting with the other states.[note 1] Accordingly, the Article 370 was incorporated into the Indian Constitution,
which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to
Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its
applicability was intended to last till the formulation and adoption of the State's constitution.[20] However, the State's constituent
assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus,
the Article was considered to have become a permanent feature of the Indian constitution, as confirmed by various rulings of the
Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.[21][22][23][7]

Original text
 370. Temporary provisions with respect to the State of Jammu and Kashmir [24]

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now in relation to the state of
Jammu and Kashmir;[note 2]
(b) the power of Parliament to make laws for the said state shall be limited to
—

(i) those matters in the Union List and the Concurrent List which, in
consultation with the Government of the State, are declared by the President
to correspond to matters specified in the Instrument of Accession governing
the accession of the State to the Dominion of India as the matters with respect
to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the
Government of the State, the President may by order specify.

Explanation [1950 wording]: For the purpose of this article, the Government of the State means the person for the
time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the
Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March,
1948;

Explanation [1952 wording]: For the purpose of this article, the Government of the State means the person for the
time being recognized by the President on the recommendation of the Legislative Assembly of the State as the
Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the
State for the time being in office.[note 3]

(c) the provisions of article 1 and of this article shall apply in relation to that
State;
(d) such 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:
Provided that no such order which relates to the matters specified in the
Instrument of Accession of the State referred to in paragraph (i) of sub-clause
(b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those
referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1)
or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the
purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such
decision as it may take thereon.

(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.[26]

Analysis
The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to
accept any future Constitution of India. The State was within its rights to draft its own Constitution and to decide for itself what
additional powers to extend to the Central Government. Article 370 was designed to protect those rights.[27] According to the
constitutional scholar A. G. Noorani, Article 370 records a 'solemn compact'. Neither India nor the State can unilaterally amend
or abrogate the Article except in accordance with the terms of the Article.[28]

Article 370 embodied six special provisions for Jammu and Kashmir: [29][30]

1. It exempted the State from the complete applicability of the Constitution of India. The State was conferred with the
power to have its own Constitution.
2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign
affairs and communications.
3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the
State Government.
4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
5. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was
convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension
of powers was possible.
6. Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.
Once the State's Constitutional Assembly convened on 31 October 1951, the State Government's power to give `concurrence'
lapsed. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority
provided to extend more powers to the Central Government or to accept Central institutions vanished.[31][32][30]

Noorani states that this understanding of the constitutionality of the Centre-State relations informed the decisions of India till
1957, but that it was abandoned afterwards. In subsequent years, other provisions continued to be extended to the State with the
'concurrence' of the State Government.[31][32][30]

Presidential orders
When Article 370 was originally created, only two articles of the Indian Constitution applied in full to Jammu and Kashmir.
Other provisions of the Constitution would apply with exceptions and modifications specified by the President in his Order in
consultation with or the concurrence of the government of the state.[33] In exercise of these powers, as conferred by clause (1) of
article 370 of the Constitution, the President made a series of orders with the concurrence of the Government of the State of
Jammu and Kashmir.

Presidential order of 1950

The Presidential order of 1950, officially The Constitution (Application to Jammu and Kashmir) Order, 1950, came into
force on 26 January 1950 contemporaneously with the Constitution of India. It specified the subjects and articles of the Indian
Constitution that corresponded to the Instrument of Accession as required by the clause b(i) of the Article 370.[34][35]

Thirty eight subjects from the Union List were mentioned as matters on which the Union legislature could make laws for the
State. Certain articles in ten of the twenty-two parts of the Indian Constitution were extended to Jammu and Kashmir, with
modifications and exceptions as agreed by the state government.[36]

In this first Presidential Order under Article 370 "235 articles of the Indian Constitution were inapplicable to the state of Jammu
& Kashmir, 9 were partially applicable, and 29 were applicable in a modified form".[35]

This order was superseded by the Presidential order of 1954.

Presidential order of 1952
The Presidential order of 1952 was issued on 15 November 1952, at the request of the state government. It amended the Article
370, replacing the phrase "recognised by the President as the Maharaja of Jammu and Kashmir" by "recognized by the President
on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the abolition
of the monarchy of Jammu and Kashmir.[37][38]

Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened on 31 October 1951. The
Basic Principles committee of the Constituent Assembly recommended the abolition of the monarchy, which was unanimously
approved by the Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja Parishad submitted a
memorandum to the President of India demanding the full application of the Indian Constitution to the State. The Government of
India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the
State. After discussions, the 1952 Delhi Agreement was reached.[39]

The State's prime minister Sheikh Abdullah was slow to implement the provisions of the Delhi Agreement. However, in August
1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replacing the position by an elected Head
of State (called Sadar-i-Riyasat). Despite reservations on this piecemeal approach to adopting provisions, the Central
Government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly elected Karan Singh, who was
already acting as the Prince Regent, as the new Sadar-i-Riyasat.[38][40]

Presidential order of 1954

The Presidential order of 1954, officially The Constitution (Application to Jammu and Kashmir) Order, 1954 came into force on
14 May 1954. Issued with the agreement of the State's Constituent Assembly, it was a comprehensive order seeking to
implement the 1952 Delhi Agreement.[41][42] Arguably, it went further than the Delhi Agreement in some respects.[43]

The provisions implementing the Delhi Agreement were:[44][45]

1. Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects').
Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to legislate on the
privileges of permanent residents with regard to immovable property, settlement in the state and employment.
2. The fundamental rights of the Indian constitution were extended to the state. However, the State Legislature was
empowered to legislate on preventive detention for the purpose of internal security. The State's land reform legislation
(which acquired land without compensation) was also protected.
3. The jurisdiction of the Supreme Court of India was extended to the State.
4. The Central Government was given power to declare national emergency in the event of external aggression. However,
its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.
In addition, the following provisions which were not previously decided in the Delhi Agreement were also
implemented:[46][47][42]

1. Financial relations between the Centre and the State were placed on the same footing as the other States. The State's
custom duties were abolished.[46]
2. Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent
of the State Government.[46][48]
Background: The State Government's decision to abolish the monarchy led to increased agitation by the Jammu Praja Parishad,
which found support among the Ladakhi Buddhists and the Hindu parties of India.[49][50][51][52] In response, Sheikh Abdullah
started questioning the value of Kashmir's accession to India, leading to a loss of support among his Cabinet members. On 8
August 1953, Sheikh Abdullah was dismissed from the post of prime minister by the Sadar-i-Riyasat Karan Singh and his
erstwhile deputy Bakshi Ghulam Mohammad was appointed in his place. Abdullah and several of his colleagues were arrested
and put in prison.[53][54]
The purged Constituent Assembly, with 60 of the original 75 members, unanimously adopted on 6 February 1954, the
recommendations of its Basic Principles Committee and the Advisory Committee on Fundamental Rights and Citizenship. [55]
According to the Basic Principles Committee:

While preserving the internal autonomy of the State, all the obligations which flow from the fact of accession and
also its elaboration as contained in the Delhi Agreement should find an appropriate place in the Constitution. The
Committee is of the opinion that it is high time that finality in this respect should be reached and the relationship
of the State with the Union should be expressed in clear and precise terms.[54]

The Presidential order of 1954 was issued based on these recommendations. [55]

Further presidential orders (1955–2018)

In addition to these original orders, forty-seven Presidential orders were issued between 11 February 1956 and 19 February 1994,
making various other provisions of the Constitution of India applicable to Jammu and Kashmir. All these orders were issued with
the 'concurrence of the Government of the State' without any Constituent Assembly.[56][57][note 4] Some of these Presidential
orders were issued when the state was under President's rule and had "no Kashmir government at all", states Jill
Cottrell.[58][note 5] The concurrence in this instance was given by the Governor of the state, a nominee of the Union
government.[58] Such an interpretation was upheld by the Supreme Court of India in 1972.[61][note 6]

The effect of the Presidential orders issued since 1954 had been to extend 94 of the 97 subjects in the Union List (the powers of
the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India.[62] All of
these orders had been issued as amendments to the Presidential Order of 1954, rather than as replacements to it, presumably
because their constitutionality was in doubt, according to Cottrell.[59]

This process has been termed the 'erosion' of the Article 370.[59][60] Home minister Gulzarilal Nanda (1963–1966) opined that
the terms for the "special status" granted to Jammu and Kashmir in this Article included a "very simple" process to amend, by an
Executive Order of the President of India, whereas the powers of all other states could only be amended by the "normal process
of (constitutional) amendment [...] subject to stringent conditions". According to him, Article 370 was "the only way" of taking
the Constitution of India into Jammu and Kashmir, it is a tunnel through which "a good deal of traffic has already passed and
more will". The successors of Nanda in the Home Ministry have interpreted the Article in the same manner.[63]

Autonomy of Jammu and Kashmir: Structure and limitations

India's constitution is a federal structure. The subjects for legislation are divided into a 'Union List', a 'State List', and a
'Concurrent List'. The Union List of ninety-six subjects, including defence, military and foreign affairs, major transport systems,
commercial issues like banking, stock exchanges and taxes, are provided for the Union government to legislate exclusively. The
State List of sixty-six items covering prisons, agriculture, most industries and certain taxes, are available for States to legislate on.
The Concurrent List, on which both the Centre and States may legislate include criminal law, marriage, bankruptcy, trade unions,
professions and price control. In case of conflict, the Union legislation takes precedence. The 'residual power', to make laws on
matters not specified in the Constitution, rests with the Union. The Union may also specify certain industries, waterways, ports
etc. to be 'national', in which case they become Union subjects.[64]

In the case of Jammu and Kashmir, the 'Union List' and the 'Concurrent List' were initially limited to the matters ceded in the
Instrument of Accession; later, they were extended with the concurrence of the State Government. The 'residual powers'
continued to rest with the State rather than the Union. According to the State Autonomy Committee, ninety-four of the ninety-
seven items in the Union List applied to Jammu and Kashmir; the provisions of the Central Bureau of Intelligence and
Investigation and preventive detention did not apply. Of the 'Concurrent List', twenty-six of the forty-seven items applied to
Jammu and Kashmir; the items of marriage and divorce, infants and minors, transfer of property other than agricultural land,
contracts and torts, bankruptcy, trusts, courts, family planning and charities had been omitted - i.e., the State had exclusive right
to legislate on those matters. The right to legislate on elections to state bodies also rested with the State.[65]

Applicability of the Indian law to Jammu and Kashmir

Acts passed by Indian Parliament have been extended to Jammu and Kashmir over a period of time. [66]

All India Services Act

Negotiable Instruments Act
Border Security Force Act
Central Vigilance Commission Act
Essential Commodities Act
Haj Committee Act
Income Tax Act
The Central Goods and Services Tax Act, 2017
Integrated Goods and Services Tax Act, 2017
The Central Laws (Extension To Jammu And Kashmir) Act, 1956
The Central Laws (Extension To Jammu And Kashmir) Act, 1968
The non-applicability of National Human Rights Commission (NHRC) Act by claiming recourse to Article 370 was set aside in
2010.[67]

Constitution of Jammu and Kashmir

Preamble and Article 3 of the erstwhile Constitution of Jammu and
Kashmir stated that the State of Jammu and Kashmir is and shall be an WE, THE PEOPLE OF THE STATE OF
integral part of the Union of India.[68] Article 5 stated that the executive
JAMMU AND KASHMIR,
and legislative power of the State extend to all matters except those
with respect to which Parliament has power to make laws for the State having solemnly resolved, in pursuance of the
under the provisions of the Constitution of India. The constitution was
accession of this State to India which took place
adopted on 17 November 1956 and came into force on 26 January
on the twenty sixth day of October, 1947, to
1957.[57]
further define the existing relationship of the
The Constitution of Jammu and Kashmir was rendered infructuous by State with the Union of India as an integral
The Constitution (Application to Jammu and Kashmir) Order, 2019
part thereof, and to secure to ourselves—
(C.O. 272) issued by the president of India on 5 August 2019.
JUSTICE, social, economic and political;

Human rights LIBERTY of thought, expression, belief, faith

Article 370 acknowledges the special status of the state of Jammu and and worship;
Kashmir in terms of autonomy and its ability to formulate laws for the
state's permanent residents.[note 7] In the 1954 Presidential order, among EQUALITY of status and of opportunity; and to
other things, the Fundamental Rights in the Indian Constitution were promote among us all;
made applicable to Kashmir with exceptions.[70] Later amendments,
states Cottrell, modified the applicability of basic human rights in the FRATERNITY assuring the dignity of the
Indian Constitution to permanent residents of Jammu and Kashmir. The individual and the unity of the nation;
state legislature further modified these, as well as added "preventive
detention laws" that it exempted from human rights challenges for IN OUR CONSTITUENT ASSEMBLY this
twenty-five years.[70] Further, the state gave special privileges to the seventeenth day
permanent residents in matters such as residence, property, education of November, 1956, do HEREBY ADOPT, ENACT
and government jobs, which were unavailable to others.[71][72] Article AND GIVE
35A of the Indian constitution has been interpreted by some Kashmiri
officials to disallow challenging any state law, merely on the ground of TO OURSELVES THIS CONSTITUTION."
infringing upon rights, granted to all citizens of India via the national
constitution.[72]
—Preamble of Constitution of Jammu &
Kashmir.[68]
Education and employment rights
The state government officials of Jammu and Kashmir have issued "permanent resident certificates". However, these certificates
differ by gender.[73][74] The certificates issued to females are marked "valid only till marriage", while certificates for males have
no such markings. If a woman married to an Indian outside of Kashmir, she was denied a new certificate. These certificates are
required by the Jammu and Kashmir state officials from anyone seeking to acquire immovable property, education or employment
within the state.[73] Under the state laws, the Jammu and Kashmir High Court quashed the appointment of Susheela Sawhney in
1979 – a Kashmiri born woman, as Assistant Professor in the Government Medical College because she was married to a man
outside of Kashmir.[73] Numerous other women – such as Sunita Sharma, Anjali Khosla, Abha Jain, Kamla Rani, Reeta Gupta,
and others – sued the state government on different but related matters, charging discrimination based on their gender.[75] These
cases were reviewed in 2002 by the full bench of the state's High Court, which overturned the past rulings and found that the state
has discriminated based on gender.[75][74] According to Cottrell, the autonomy and special status granted to the state of Jammu
and Kashmir makes it possible "for it to have rather lower standards of human rights".[76]

Women's rights
In 2004, the Jammu and Kashmir Legislative Assembly passed the Permanent Residents (Disqualification) Bill – also known as
the Daughter's Bill. The new law sought to deprive daughters of the state's permanent residents[note 8] of all their native-born
rights and privileges if they marry someone who is not the subject of Jammu and Kashmir. This law applied only to the female
descendants of Kashmir subjects, and does not apply to the male descendants.[73][77]

According to Sehla Ashai, per its provisions, "the women who married non-state subjects [men from other states of India or
abroad] could no longer claim state subject status, would thereby lose both preferential treatment in government hiring and the
ability to acquire new property in the state". The opponents to this bill argued that this is a "violation of Kashmiri women's
fundamental rights under the Indian Constitution" and that the bill discriminated human beings by their gender.[78] The
supporters argued that if this bill failed to pass it "would be the end of constitutionally guaranteed autonomy for Jammu and
Kashmir" and that the law was created to "protect the ethnic identity of the people of Jammu and Kashmir".[78] The bill was
supported by the state-based Jammu & Kashmir National Conference Party and Jammu and Kashmir Peoples Democratic Party,
but challenged by the Indian National Congress party. It was reintroduced in J&K legislative houses in August 2004 as an
amendment to the state constitution, but it failed to pass the Upper House of the state by the required two-thirds majority.[79]

In 2010, the Permanent Residents (Disqualification) legislation was reintroduced in the state's legislative houses, with support
from the two main state-based parties.[80] It again attracted criticism that "such bills have no sanction in the legal and
constitutional history of the state or in Article 370".[74]

Calls for abrogation

In 2014, as part of Bharatiya Janata Party manifesto for the 2014 general election, the party pledged to integrate the state of
Jammu and Kashmir into the Union of India. [81] After winning the elections, attempts were made by the party along with its
parent organisation, the Rashtriya Swayamsevak Sangh (RSS), for the abrogation of Article 370.[82] Former prince regent and
Congress leader Karan Singh opined that an integral review of Article 370 was overdue and, it need to be worked on jointly with
the State of Jammu and Kashmir.[83]

However, in October 2015, the High Court of Jammu and Kashmir ruled that the Article 370 cannot be "abrogated, repealed or
even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend
to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation
before its dissolution in 1957, Article 370 has taken on the features of a "permanent provision" despite being titled a temporary
provision in the Constitution.[84][22] On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that Article
370 has acquired a permanent status. It stated that, since the State Constituent Assembly has ceased to exist, the President of India
would not be able to fulfill the mandatory provisions required for its abrogation.[85]

In 2019, as part of Bharatiya Janata Party manifesto for the 2019 general election, the party again pledged to integrate the state of
Jammu and Kashmir into the Union of India.[86][87][88]

2019 actions

Presidential order of 2019

On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha (upper house of the Indian Parliament) that the
President of India had issued The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article
370, superseding the Constitution (Application to Jammu and Kashmir) Order, 1954. The order stated that all the provisions of
the Indian Constitution applied to Jammu and Kashmir. Whereas the 1954 order specified that only some articles of the Indian
constitution to apply to the state, the new order removed all such restrictions. This in effect meant that the separate Constitution
of Jammu and Kashmir stood abrogated. The President issued the order with the "concurrence of the Government of State of
Jammu and Kashmir".[10][89]

The Presidential Order 2019 also added clause (4) with four sub-clauses to Article 367 under "interpretations". The phrase "Sadar-
i-Riyasat acting on the aid and advice of the Council of Ministers" shall be construed as the "Governor of Jammu and Kashmir".
The phrase "State government" shall include the Governor. In proviso to clause (3) of article 370 of the Constitution, the
expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State".[10][note 9]
According to Jill Cottrell, some of the Presidential orders under Article 370 have been issued since 1954 in similar circumstances
when the state was under President's rule. The Union governments interpreted the "concurrence of the state government" under
these circumstances to mean the Governor.[58][note 6]

Immediately after placing the Presidential Order 2019 before the Rajya Sabha, Home Minister Amit Shah moved a resolution
recommending that the president issue an order under article 370(3) rendering all clauses of Article 370 inoperative.[90][10] After
the resolution was adopted by both houses of the parliament, the president issued Constitutional Order 273 on 6 August 2019
replacing the extant text of Article 370 with the following text:[13][91]

370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions,
shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or
article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and
Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or
usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged
under article 363 or otherwise.

Change of status of Jammu and Kashmir

On 5 August 2019, the Home Minister Amit Shah introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya
Sabha to convert Jammu and Kashmir's status of a state to two separate union territories, namely Union Territory of Jammu and
Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to have a legislature under the
bill whereas the union territory of Ladakh is proposed to not have one.[10][92] By the end of the day, the bill was passed by Rajya
Sabha with 125 votes in its favour and 61 against (67%).[93] The next day, the bill was passed by the Lok Sabha with 370 votes in
its favour and 70 against it (84%).[94] The bill became an Act after it was signed by the president.

The two union territories are scheduled to come into existence on 31 October 2019.

See also
1974 Indira–Sheikh accord
2014 Jammu and Kashmir Legislative Assembly election
Article 356
Article 35A of Constitution of India
Constitution of Jammu and Kashmir
Instrument of Accession (Jammu and Kashmir)
Kashmir conflict
Part XXI of the Constitution of India

Notes
1. The negotiations were held at the residence of Home minister Vallabhbhai Patel on 15–16 May 1949, and prime minister
Nehru recorded the results in a letter on 18 May. It said in particular, "It will be for the Constituent Assembly of the State
when convened, to determine in respect of which other subjects the state may accede".[19]
2. Article 238 was repealed by the 7th Amendment in 1956.
3. This was changed via the 1952 Presidential order.[25]
4. The Constituent Assembly was dissolved by a resolution passed by the representatives of Kashmir in 1956, and it ceased
to exist on January 26, 1957.[57]
5. While the Congress party central government led by Rajiv Gandhi was in power, the President of India made an order
under Article 370, on 30 July 1986, extending to Jammu and Kashmir Article 249 of the Indian Constitution in order to
empower Indian Parliament to legislate on matters in the State List after obtaining a Rajya Sabha resolution. The then
Governor Jagmohan gave concurrence on behalf of the state government while the state was under President's rule,[59]
despite protests from G. A. Lone – the Law secretary of Jammu & Kashmir – and in the absence of a Council of
Ministers.[59][60]
6. In the 1972 case Mohd Maqbool Damnoo vs State of Jammu and Kashmir (1 SCC 536), the petitioner challenged the
constitutionality of interpreting and replacing the Sadar-i-Riyasat with the Governor of the state. The Supreme Court of
India held that the "Governor is the successor to the Sadar-i-Riyasat and is able to give the State Government's
concurrence to any amendments under Article 370", states Louise Tillin.[61]
7. The legal term "permanent residents" replaced the term "state subjects" in earlier laws.[69]
8. The legal term "permanent residents" replaced the term "state subjects" in earlier laws.[69]
9. See here for the complete Part XXI of the Indian Constitution.

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60. Noorani, Article 370 (2011), Chapter 11.
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Vakasha Sachdev, Stop With the Fake News, Article 370 Was NOT a Temporary Provision (https://www.thequint.
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Article 35A of the Constitution of India

Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state's legislature to define
"permanent residents" of the state and provide special rights and privileges to those permanent residents.[1] It was added to the
Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the
President of India on 14 May 1954, under Article 370.[2] The state of Jammu and Kashmir defined these privileges to include the
ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and
availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian
citizens, were not entitled to these 'privileges'.

On 5 August 2019, the President of India Ram Nath Kovind issued a Presidential Order, whereby all the provisions of the Indian
Constitution are to apply to the State without any special provisions. This would imply that the State's separate Constitution
stands inoperative, including the privileges sanctioned by the Article 35A.[3]

Contents
Background
Text of the Article 35A
Enactment
Permanent Residents
Debate

Criticism
Support
See also
References
Bibliography

Background
Prior to 1947, Jammu and Kashmir was a princely state under the British Paramountcy. The people of the princely states were
"state subjects", not British colonial subjects.[4] In the case of Jammu and Kashmir, the political movements in the state in the
early 20th century led to the emergence of "hereditary state subject" as a political identity for the State's people. In particular, the
Pandit community had launched a "Kashmir for the Kashmiris" movement demanding that only Kashmiris should be employed in
state government jobs. Legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir
between 1912 and 1932. The 1927 Hereditary State Subject Order granted to the state subjects the right to government office and
the right to land use and ownership, which were not available to non-state subjects.[5][6]

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over
defence, external affairs and communications (the 'ceded subjects') to the Government of India . The Article 370 of the
Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship. Discussions for furthering
the relationship between the State and the Union continued, culminating in the 1952 Delhi Agreement, whereby the governments
of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be
empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.[7][8]
In his statement to the Lok Sabha on the Delhi agreement, Nehru has said:[9]

The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were
very apprehensive about one or two matters. For a long time past, in the Maharaja's time, there had been laws
there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in
Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen
coming and settling down there, because the climate is delectable, and acquiring property. So although most of
their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody
from outside should acquire land there. And that continues. So the present Government of Kashmir is very
anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by
people whose sole qualification might be the possession of too much money and nothing else, who might buy up,
and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to
have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared
up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and
other minor things, I think, State scholarships and the rest.

So, we agreed and noted this down: 'The State legislature shall have power to define and regulate the rights and
privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable
property, appointments to services and like matters. Till then the existing State law should apply.'

Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu and Kashmir, the
President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, through which Indian citizenship
was extended to the residents of the state, and simultaneously the Article 35A was inserted into the Indian constitution enabling
the State legislature to define the privileges of the permanent residents.[7][8]

Text of the Article 35A

"Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution,
no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:[2]

(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
(iv) 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."

Enactment
The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued by President Rajendra Prasad under Article 370,
with the advice of the Union Government headed by Jawaharlal Nehru.[10][9] It was enacted as a subsequent to the '1952 Delhi
agreement', reached between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which dealt with the
extension of Indian citizenship to the Jammu and Kashmir "state subjects". [10][9][11]

The state is empowered, both in the Instrument of Accession and the Article 370, to decree exceptions to any extension of the
Indian Constitution to the state, other than in the matter of ceded subjects. So Article 35A is seen as an exception authorised by
the Article 370, clause(1)(d).[10][9][12]

Bakshi Ghulam Mohammad of the Jammu and Kashmir National Conference was the Prime Minister of Jammu and Kashmir at
the time of the 1954 Presidential order.

As the Article 35A was added to the Constitution by the executive head without any discussion in the Parliament, questions have
been raised about the manner of its enactment.[13]

Permanent Residents
The Jammu and Kashmir Constitution, which was adopted on November 17, 1956, defined a Permanent Resident (PR) of the
state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully
acquired immovable property in the state”.[1][14] The Jammu and Kashmir state legislature can alter the definition of permanent
residents or modify the privileges applicable to them through a law passed with two-thirds majority.[15]

Jammu and Kashmir Constituent Assembly incorporated in Jammu and Kashmir Constitution discriminatory
provisions under Section 51 (Qualifications for membership of the Legislature – A person shall not be qualified to
be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State), Section 127
(Transitional provisions – Until other provision is made in this behalf under this Constitution, all the laws in force
immediately before the commencement of this Constitution and applicable to any public service or any post
which continues to exist after the commencement of this Constitution, as service or post under the State, shall
continue in force so far-as consistent with the provisions of this Constitution) and Section 140 (The elections to
the Legislative Assembly shall be on the basis of adult suffrage; that is to say, every person who is a permanent
resident of the State and who is not less than Eighteen years of age on such date ...), etc.
No person who is not a Permanent Resident of Jammu and Kashmir can own property in Jammu and Kashmir.
No person who is not a Permanent Resident of Jammu and Kashmir can obtain job within Jammu and Kashmir
Government.
No person who is not a Permanent Resident of Jammu and Kashmir can join any professional college run by
government of Jammu and Kashmir or get any form of government aid out of government funds.

Debate

Criticism
In July 2015, an RSS-backed think-tank called the Jammu & Kashmir Study Centre first came up with the idea to challenge
Article 35A in the Supreme Court. A petition was filed in the Delhi High Court against the Article. [16][17] Later, it was also
challenged in the Supreme Court.[17]

The legality issues pointed are;

1. Article 35a was not added to the Constitution by following the procedure prescribed for amendment of the Constitution
of India under Article 368. Article 370 does not anywhere confer on the President legislative or executive powers so vast
that he can amend the Constitution or perform the function of Parliament. It has been brought about by the executive
organ when actually the right of amendment of the Constitution lies with the legislative organ. Therefore, it is, allegedly,
ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law.[18]
2. Besides carrying out many modifications and changes, this order 'added' a new "Article 35A" to the Constitution of India.
Addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by
Parliament as per procedure laid down in Article 368. But, Article 35A was never presented before Parliament. This meant
the President had bypassed Parliament in this order to add Article 35A.[16]
 3. The PRC classification created by Article 35A suffers from the violation of Article 14, Equality before the Law. The non-
resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir.[18]
4. This also meant that the amending power of Parliament under Article 368 of the Constitution itself was abridged in its
application to Jammu and Kashmir, another amendment, without any reference to Parliament. When the President of
India does not have legislative powers, he performed the function of Parliament.[16]
The main objections raised are:

1. It facilitates the violation of 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 that is not a permanent resident. Therefore, her children are not given Permanent
Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman's property
even if she is a permanent resident.[19][20]
2. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste
and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957
were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state
only if they continued to be safai-karmacharis (scavengers). But even after six decades of service in the state, their children
are doomed to be safai-karmacharis. They have been denied the right to quit scavenging and choose any other
profession.[16][21][22][23]
3. The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don't come to
the state for the same reason.[16]
4. Children of non-state subjects do not get admission to state colleges.[16]
5. It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-
permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by
permanent residents of Jammu and Kashmir.[18]
6. It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and
give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from
buying properties, getting a government job or voting in the local elections.[24]

Support
According to constitutional expert A.G. Noorani, all the legal arguments against the article are groundless, and are raised with
"communal-minded majoritarian" intentions. He refers to the various Articles in the Constitution, that similarly provide special
rights to other Indian states, and remarks that no objections were raised on them. Since Article 370 was enacted on 26 November
1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, he remarks, Article
35A "flows inexorably" from it. He recalls the Sheikh Abdullah's report to Kashmir's Constituent Assembly on 11 August 1952,
which said, “it was agreed that the State legislature shall have power to define and regulate the rights and privileges of the
permanent residents of the State more especially in regard to acquisition of immovable property, appointments to services and
like matters. There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the
State have been victims of exploitation at the hands of their well-to-do neighbours."[9]

Article 35 A protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Scholar
Srinath Raghavan states, Kashmiris are apprehensive that any move to abrogate Article 35A would open the gates for a
demographic transformation of the valley, an objective advanced by the Sangh Parivar groups as an ideal solution to the Kashmir
issue. He further says that the state's autonomy has been gradually eroded by various governments of Delhi through misuse of the
provisions of Article 370, and remarks: "Kashmiris have come to regard the rights of permanent settlement as the only remaining
piece of any meaningful autonomy." Former Chief Minister of Jammu and Kashmir, Mufti Mohammad Sayeed, while speaking
about the issue of West Pakistani refugees, has said, "before we do anything on this, we need to allay genuine fears that there is an
attempt to change the demographics of the state.”[12][25]

Noorani also points to the observations made by the High Court of Jammu & Kashmir in this regard, while delivering a
judgement on 16 July 2015:[9][26]
 "The Parliament has no power to legislate law about the subject's administration of justice, the land & the other
immovable properties. [...]

Article 35(A) of the Constitution of India, which has been applied to the State of Jammu and Kashmir, not only
recognizes but clarifies the already existing constitutional and legal position and does not extend something new
to state of Jammu and Kashmir. This article, on its own, does not give anything new to the State of Jammu and
Kashmir. Article 14 of the Constitution of India, as has been made applicable to the State of Jammu and Kashmir,
thus, gave equal protection of laws to the State subjects/citizens as a class apart. Similarly, article 19(1)(f) of the
Constitution of India, which has been made applicable to the State of Jammu and Kashmir and till date continues
to be in force in the State, recognizes the right to own, hold and dispose of property, which right otherwise is
inherent in the State subjects/citizens of the State of Jammu and Kashmir, who stand defined in terms of
Elans/Orders of His Highness and the Constitution of Jammu and Kashmir.

Laws have their own universe. They operate in matter and not in vacuum. The laws are located in time and space.
In the State of Jammu and Kashmir, the immovable property of a State subject/citizen, cannot be permitted to be
transferred to a non State subject. This legal and constitutional protection is inherent in the State subjects of the
State of Jammu and Kashmir and this fundamental and basic inherent right cannot be taken away in view of
peculiar and special constitutional position occupied by State of Jammu and Kashmir. Article 35-A is clarificatory
provision to clear the issue of constitutional position obtaining in rest of country in contrast to State of Jammu and
Kashmir. This provision clears the constitutional relationship between people of rest of country with people of
Jammu and Kashmir."

As an amendment to, or modification of, the 1954 order, 41 subsequent Presidential orders have been passed afterwards.
According to the report of the State Autonomy Committee, the central government, through these Presidential orders, extended
94 out of 97 entries in the Union List to Jammu and Kashmir, and made applicable to the state 260 out of 395 articles of the
Indian Constitution. They have been used to issue provisions and make changes, which include - replacing the elected Sadr-e-
Riyasat (President of the State) with a Governor chosen by the Centre; changing the ‘Prime Minister’ of the state to Chief
Minister; extending the powers of the Supreme Court and Election Commission to Jammu and Kashmir; and preventing the state
Assembly from making any amendment to the Jammu and Kashmir Constitution. Jammu and Kashmir advocate Zaffar Shah says,
Article 35A has been added in the Constitutional Application Order 1954 and by questioning it, the entire Constitutional
Application Order will have to be questioned. If the Court rules that Constitutional Application Orders are invalid, such a
judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date. The Constitutional link
between the Union and the State will be snapped and the position of the State will be same as it was before constitutional
arrangements were worked out. So, if the order of 1954 is snapped, Jammu and Kashmir can, in theory, return to the pre-1954
constitutional arrangement, where the Centre's powers were restricted to Defence, Foreign Affairs and Communications alone,
according to the Instrument of Accession. Zaffar Shah states it will also affect various provisions of the Constitution of the State
and result in Constitutional crisis.[12][1][27]

Zaffar Shah adds that the scope and extent of power of the President to apply Constitutional provisions with or without
“exceptions” or “modifications” has already been subject matter of the decisions of the Supreme Court of India, and he opines, it
is ruled to be co-extensive with the power to amend Constitution and includes the power to enlarge any existing provision or add
new provision. He says the only requirement is that it has to be done by the President with “concurrence” of the Government of
Jammu and Kashmir.[27]
The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of
Article 370 and Article 35A.[28][17]"Mufti Mohammad Sayeed government vows to protect article 370" (http://www.dnaindia.co
m/india/report-mufti-mohammad-sayeed-government-vows-to-protect-article-370-2132281). Daily News & Analysis. 7 October
2015.</ref> In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which
read, "though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under
Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”. It termed the PIL against
the article as “legally misconceived, untenable and meritless”.[12]

In January 2017, the Chief Minister of Jammu and Kashmir, Mehbooba Mufti of PDP has commented that anybody raking up
Article 370 & Article 35 A repeatedly, is hurting the soul of Kashmir. Vowing to oppose any such move, she said, “There will be
no bigger anti-national thing than this because when you weaken this uniqueness of Kashmir through judiciary, then those forces
in Kashmir Valley, who want to put an end to the composite culture in Kashmir Valley and want to have people from one
community (Muslims) only, with one attire and one way of life, you will only make them successful.”[29] Talking about BJP's
opposition to the state's autonomy, she also said, “when the people of BJP talk of Article 370, they talk of technical integration.
We have to make them understand that we also want that Jammu and Kashmir should fully integrate with India emotionally,
technically." She added that the integration which should have been done "emotionally and psychologically", was not done
completely, which is needed, and for it, she said, Article 370 is not an impediment but a bridge which connects the state of
Jammu and Kashmir and the rest of India.[30] Previously in 2014, during a similar debate regarding autonomy of Jammu and
Kashmir and Article 370, Mehbooba Mufti stated that fiddling with Article 370 could lead to anarchy in the state. She said, such
“irresponsible utterances” should be stopped as they could have serious repercussions in Jammu and Kashmir, besides having the
potential of spoiling the atmosphere of inclusiveness and peace which the Indian government aims at achieving.[31][32][33][34]

Raghavan has stated that any attempt by Delhi to tamper with the state's autonomy "is bound to result in a massive backlash".[12]

See also
Article 370 of the Constitution of India
Constitution of Jammu and Kashmir
Instrument of Accession (Jammu and Kashmir)
Kashmir conflict
Political integration of India

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