Chief Justice of India D.Y. A five-judge Constitution bench headed by Chandrachud will hear on July 11 over two dozen petitions seeking to challenge the legal validity of the Jammu and Kashmir Reorganization Act, 2019, which bifurcated Jammu and Kashmir into two union territories. was divided into and the presidential order of 5 August 2019 Article 370 (which gave special status to the erstwhile state) was repealed.
What is Article 370?
Added to the Constitution on October 17, 1949, Article 370 exempts Jammu and Kashmir from the Indian Constitution and allows the state to draft its own constitution (except for Article 1 and Article 370). It restricts the legislative powers of the Parliament with respect to Jammu and Kashmir. It also provided that “consultation” with the state government would be required to extend the central law on the subjects included in the Instrument of Accession (IoA). This was supposed to be an interim arrangement till a final solution to the Kashmir issue is achieved by involving all the stakeholders. It grants autonomy to the state and allows it to grant certain privileges to its permanent residents.
State Legislature term six years
In Article 370, emergency provisions are not applicable in the state on the ground of internal disturbance without the consent of the state. The name and boundaries of the state cannot be changed without the consent of its legislature. The state has its own separate constitution, a separate flag and a separate penal code (Ranbir Penal Code). The term of the state assembly is six years, while in other states this term is five years. The Indian Parliament can pass laws with respect to Jammu and Kashmir only in matters of defence, foreign affairs and communications. Any other law made by the Union shall be applicable in Jammu and Kashmir only by the order of the President and with the consent of the State Legislature. The President may, by public notification, declare that this article shall not be carried into operation until the State Legislature has recommended it.
What is Instrument of Access (IoA)?
The IoA came into play when British India was partitioned into India and Pakistan as per the Indian Independence Act, 1947. According to the Act there were three options – to remain an independent country, to join the Dominion of India or to join the Dominion of Pakistan and ‘IoA’ was to join either country.
What were the conditions for Kashmir in the IoA?
Accordingly, the Parliament of India was given the power to make laws with respect to Jammu and Kashmir only on defence, foreign affairs and communications. Kashmir’s accession to India. Let me tell you, Raja Hari Singh had initially decided to remain independent but after the invasion of Pakistan, he sought help from India, in exchange for which Kashmir was talked about joining India. Hari Singh signed the Instrument of Accession on 26 October 1947 and the Governor General Lord Mountbatten accepted it on 27 October 1947. It was the declared policy of India that wherever there was a dispute, it should be decided according to the will of the people rather than the unilateral decision of the ruler of the princely state.
Was Article 370 a temporary provision?
It is the first article of Part XXI of the Constitution. The title of this part is ‘Temporary, Transitional and Special Provisions’. Article 370 can be considered as temporary in the sense that the Constituent Assembly of J&K had the right to modify/remove/retain it. Another explanation was that it would be kept temporary until the referendum. The central government had said in a written reply in Parliament last year that there is no proposal to remove Article 370. The Delhi High Court (2017) also dismissed a petition which said that Article 370 was temporary and its continuation was a fraud on the Constitution. The Supreme Court said in April 2018 that despite the title “temporary”, Article 370 is not temporary.
Can Article 370 be repealed?
Yes, Article 370(3) can be repealed by the order of the President. However, such an order will also have to take consent from the Constituent Assembly of Jammu and Kashmir. Since such an assembly was dissolved on January 26, 1957, one view is that it cannot be removed now but another view is that it can be done, but only with the consent of the state assembly.
What is the importance of Article 370 for the Indian Union?
Article 370 mentions Article 1, in which the name of Jammu and Kashmir is included in the list of states. Article 370 has been described as a bridge through which the Constitution is implemented in Jammu and Kashmir. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to Jammu and Kashmir. This is the only way through which India has reduced the effect of the special status of Jammu and Kashmir to almost zero through presidential orders.
Article 370 curtails J&K’s powers compared to other states
By the 1954 order, almost the entire constitution was extended to Jammu and Kashmir, including most of the constitutional amendments. 94 of the 97 entries in the Union List; Of the 47 items in the Concurrent List, 26 are applicable to Jammu and Kashmir. 260 out of 395 articles and 7 out of 12 schedules have been extended to the state. Therefore, in some ways, Article 370 reduces the powers of Jammu and Kashmir in comparison to other states. It is more useful for India today than Jammu and Kashmir.
What is Article 35A?
Article 35A, which is an extension of Article 370, empowers the legislature of the state of Jammu and Kashmir to define permanent residents of the state and grant privileges to those permanent residents and allow residents of other states to work in the state. or does not allow ownership of the property. The purpose of this article was to protect the demographic structure of Jammu and Kashmir. The constitutionality of Article 35A is debated on the ground that it was not added through the amendment process. However, similar provisions have also been used to extend the special rights of other states.
Issues related to abrogation of Articles 35A and 370
At present the rights derived from these articles are regarded as the only significant autonomy held by Kashmiris. Therefore, there is a possibility of widespread reaction on tampering with them. If Article 35A is constitutionally repealed, J&K will revert to its pre-1954 status. In that case, the central government’s powers related to defence, foreign affairs and communication within the state will end. It has also been argued that many of the autonomy granted to the state under Article 370 is diluted anyway and that most of the laws of the Union apply to the state of Jammu and Kashmir as well.
What will happen after abrogation of 370?
Article 370 cannot be abrogated unilaterally. It is necessary that Jammu and Kashmir and the Center come forward unanimously in this matter. This work can be possible only by promoting cooperative federalism and on the strength of self-confidence. The youth and residents of Kashmir should be assured of the fact that Kashmir is a part of the country’s economic progress and an integral part of India. The state government should also adopt the path of democracy with consensus. It is important that this includes and takes into account a wide range of decision-making options.
