A recent central ordinance, which extends reservation to SCs and STs in J&K, throws the spotlight on Article 35A, as well as Article 370 from which it derives. While regional political leaders have warned against dilution of Article 35A, petitions challenging it are due to come up in SC. What are these two provisions?
*What is Article 370?*
Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution.
It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory.
*What were the terms included in the IoA for Kashmir?*
The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications.
In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”.
Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.
*How did the accession come about?*
Raja Hari Singh had initially decided to remain independent and sign standstill agreements with India and Pakistan, and Pakistan in fact signed it. But following an invasion from tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.
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