The difference between article 35A and article 370: Article of faith

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Article 35 A and Article 370 concern the State of Jammu and Kashmir, both of them being temporary provisions.
Article 35 A and Article 370 concern the State of Jammu and Kashmir, both of them being temporary provisions.

Well, both the Articles of the constitution i.e. Article 35 A and Article 370 concern the State of Jammu and Kashmir, both of them being temporary provisions. The difference is with respect to their subject, where Article 35 A protects the rights of the people with respect to employment, property and aids by the state government whereas Article 370 protects and grants special status to the sovereignty of the state giving the power to make a separate set of laws to be applied for its governance. Studying in detail:-

Article 370 of the Constitution of India

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

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;

(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: 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-riyqsat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such as 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.

  1. Firstly according to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
  2. Secondly, Under Article 370, the Centre has no power to declare a financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression. The Union government can therefore not declare an emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

Article 35 A is the result of the 1954 order.

Article 35 A – (The Article doesn’t find mention in any of the bare text of Constitution published in INDIA, including the one kept in the Parliament)

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 –

(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.”

  1. So Firstly deciphering the provisions of Article 35A, it is clear that it gives special rights to the “permanent residents” of the state where it empowers the state legislature to define permanent residents and then give them special treatment, privileges and rights. This special treatment is with respect to ’employment with the state government, acquisition of immovable property in the state, settlement in the state, or right to scholarships and such other forms of aid as the state government may provide’.
  2. Secondly flipping through the pages of the constitutional history of India we find it interesting to note that this provision was enacted by a Presidential Order in 1954. Presidential Orders are issued with respect to the state of Jammu and Kashmir under Article 370, which is a temporary provision in the Constitution as discussed earlier.

Hope this clears the difference between them, also recently there have been various opinions and thoughts regarding the necessity of these articles in today’s’ time when “integration of Jammu and Kashmir fully into India” is one of the top priorities of the current government.

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