ANALYSIS OF THE ABOLITION OF ARTICLE 370 OF THE CONSTITUITION

Updated: Aug 26



ARTICLE 370 OF THE CONSTITUTION


Composition of Article 370


Article 370 of the Indian constitution gave special status to Jammu and Kashmir which was administered by India as a state from 1954 to 31 October 2019, conferring it with the power to possess a separate constitution, a state flag and autonomy over the inner administration of the state.

provisions of Article 370?

Parliament needs the Jammu & Kashmir government's approval for applying laws in the state — except in cases of defense, foreign affairs, finance, and communications.

The law of citizenship, ownership of property, and fundamental rights of the residents of Jammu & Kashmir is different from the residents living in rest of India. Under Article 370, citizens from other states cannot buy property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare a financial emergency within the state.

It is important to notice that Article 370(1)(c) explicitly mentions that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it's Article 370 that binds the state of J&K to the Indian Union. Removing Article 370, which may be done by a Presidential Order, would render the state independent of India, unless new overriding laws are made.


Background behind establishment of Article 370

Article 370 was worked out in late 1947 between Sheikh Abdullah, who had by then been appointed Prime Minister of J&K by the Maharaja and Nehru, who kept the Kashmir portfolio with himself and kept Sardar Patel, the home minister, far away from his legitimate function. Hence Nehru is answerable to all or any acts of commission and omission, consequences of which we are suffering till date as far as J&K is concerned.

While it had been Mountbatten who persuaded Nehru to require the J&K issue to the UN, it had been Sheikh Abdullah, who, driven by his ambition to be ruler of an independent Kashmir and his hatred for the Maharaja, persuaded Nehru to provide special status to J&K

Most importantly Article 370 was proposed so that any changes that need to be done within the state would be decided by only Jammu & Kashmir Assembly.



What is Article 35A?

Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.

Why is it being challenged?


The Parliament was forced to strike down Article 370 due to the two petitions moved by the Kashmiris that have called upon the court to convert the state into Union territories.

The petitions claims that the basic structure of the Constitution has been violated and has done damage to India’s federal structure. In the past, the Supreme Court had declared that the basic structure is beyond the Parliament’s powers to alter.


Legal Challenges

In a National Conference, Lok Sabha members Mohammad Akbar Lone and Hasnain Masoodi moved the Supreme Court with a petition under Article 32 of the Constitution. This article in the Constitution allows the Supreme Court to issue any order to protect the fundamental rights of citizens.

In the petition, the MPs have made four significant points.

First, the presidential order on August 5 that substituted the words “governor” for “the government of Jammu and Kashmir” and the “legislative assembly” for the “constituent assembly”. The president cannot alter Article 370 using powers granted under the same article, the MPs said.

In the order, the president had used Article 367, an interpretative provision in the Indian Constitution, to make the substitutions for the “government” and “constituent assembly of Jammu and Kashmir”.

The petition said: “Presidential Order C.O. 272 uses Article 370(1)(d) – which was meant to apply other provisions of the Constitution to the state of Jammu and Kashmir – to change Article 370 itself, and thereby the terms of the federal relationship between the state of Jammu and Kashmir and the Union of India.”

Second, the petition claimed that since the presidential order substituting the “governor” for the “government of Jammu and Kashmir” was issued during president’s rule, the concurrence of the governor to the changes made to Article 370 amounted to the Centre taking approval from itself to remove the state’s special status and reorganise it into Union territories.

This was because the president acts on the aid and advice of the Centre and the governor is an agent of the president in the state. “The Presidential Order takes cover of a temporary situation, meant to carry the field until the return of the elected government, to accomplish a fundamentally, permanently, and irreversibly alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives,” the petition said

Further, the MPs said by making all the provisions of the Indian Constitution applicable in perpetuity to Jammu and Kashmir, the presidential order undermines one of the basic purposes of Article 370. This article is aiming at felicitating facilitate the extension of constitutional provisions to the state in an incremental and orderly manner, based upon the needs and requirements at a particular time, without dismantling the state constitution.

Lastly, the petition said that in substituting “constituent assembly” with “legislative assembly” to offer concurrence to the move to hollow out Article 370, the presidential order has assumed that the legislative assembly has such powers. This, the petition claimed, was wrong because Article 147 of the Jammu and Kashmir Constitution prohibits such a move. The Article makes it clear that any changes to the Jammu and Kashmir Constitution needs the approval of two-thirds of the members of the legislative assembly.

The second petition was moved by a Kashmiri lawyer Shakir Shabir makes similar statements. It said that the governor does not have the powers to make unilateral decisions on behalf of the people of Jammu and Kashmir without consultations as he is an unelected representative in the state.


Changes after abolishing Article 370


On 5 August 2019; the NDA government has scrapped the article 370 of the Indian constitution except clause 1 of the same. Now the Jammu and Kashmir would be a Union territory with legislative assembly like Delhi and Puducherry. Now let’s know in detail the impacts of this new development in the Jammu and Kashmir state.

Article 370 came into force since November 17, 1952. Article 370 in part XXI of the Indian constitution grants a special status to Jammu and Kashmir. Till August 4, 2019; it had been the sole Indian state which has its own separate state constitution and national flag. But now the J&K will neither have separate Constitutions of state nor separate national flag of the state.

Changes in the J&K after the abolition of article 370 in the Indian constitution.

1. Now the J&K will be divided into two states I.e. J&K and Ladakh.

2. Both Ladakh and Jammu and Kashmir will be Union territory. But there's a difference in these Union Territories; Jammu and Kashmir will have a state legislative assembly like Delhi and Puducherry while Ladakh would be a Union Territory without legislative assembly like Chandigarh and Dadra Nagar Haweli etc.

3. Now the all provisions of the article 370 are null and void except clause 1 of the article 370.

4. Clause 1 of the article 370 envisages that Jammu and Kashmir is that the integral a part of India.

5. After the repeal of article 370; now the reservation policy will get change within the Jammu and Kashmir. Now People of SC/ST/Minority communities will get reservation in Government jobs and admission in colleges and Universities.

6. Now the entire legislature seats within the state assembly would be;

Total Assembly seats:111

Assembly Seats in Kashmir region: 46

Assembly Seats in Jammu region: 37

Assembly Seats in Ladakh region:4

Assembly Seats in Pakistan Occupied Kashmir; 24

After the repeal of article 370; the entire assembly seats would scale back to 83 because 4 seats of Ladakh region would be slashed.

7. Now every resident of Jammu and Kashmir state would enjoy just single citizenship like all other states of India.

8. Now the Jammu and Kashmir state would have only one national flag that's our Tri-Color of India.

9. Now the laws like Right to Information would be applicable within the J&K.

10. Now the article 367 would be applicable within the J&K.

11. Now the article 356 of the Indian constitution would be applicable within the J&K. It means the governor rule is replaced by the president rule out the state.

12. All the citizens of India would be eligible to get land within the J&K.

13. Now the tenure of the Jammu and Kashmir legislative assembly is reduced to five years from 6 years of earlier.

So the abolition of the article 370 would not only change the geography of the J&K but also demography of the state also.

© The People Bookmark | 2020

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