Article 370n 35A-On 5th August, 2019, by virtue of the Presidential Order 2019, Article 370 pertaining to provisions of the separate Constitution of Jammu and Kashmir was abrogated. With this action, the Government of India revoked the special status or limited autonomy, granted under Article 370 of the Indian Constitution to Jammu and Kashmir.
Following the accession of Jammu and Kashmir to the Indian Union on 26th October, 1947, the Maharaja Hari Singh who had ruled Jammu and Kashmir earlier handed over control of defence, external affairs and communications to the Government of India. Article 370 and the accompanying Constitutional Order of 1950 formalised this relationship. In 1952, 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’s subjects, who would now be called ‘permanent residents’.
Article 370 of the Indian Constitution gave special status to the state of Jammu and Kashmir by conferring it with the power to have a separate Constitution, a state flag and autonomy over the internal administration of the state. Article 370 was included in the section of the Constitution on temporary, transitional and special provisions. The Constituent Assembly of Jammu and Kashmir after its establishment was empowered to recommend the articles of the Indian Constitution that should be applied to the state or to abrogate Article 370 altogether.
Provisions of Article 35A and 370
A Presidential Order was issued in 1954 which specified the articles of the Indian Constitution that applied to the state. As part of this order, Article 35A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents of the state.
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 healthcare. Non-permanent residents the state, even if they were Indian citizens, were not entitled to these privileges.
Later, as the state’s Constituent Assembly dissolved itself without recommending the abrogation of Article 370, the article was understood to have become a permanent feature of the Indian Constitution. However, Clause 3 of the Article 370 gives the President of India the power to amend its provisions and scope.
In subsequent years, the provisions of Article 370 were diluted through various presidential orders to allow more subjects to be controlled by the Union Government which had earlier been applicable to the state government of Jammu and Kashmir. In each case, the concurrence of the State Assembly was taken before issuing the Presidential order. In various court cases over the years, the Supreme Court of India had always upheld that Clause 1 of Article 370 cannot be modified or deleted, as it states that it applies to the state of Jammu and Kashmir.
Reasons for Abrogation of Article 370
The reasons given by the Government of India for abrogation of Article 370 in August 2019, was that, it was only a temporary provision. Further, Article 370 was added in the Indian Constitution to provide autonomy to Jammu and Kashmir state. However, it failed to address the well-being of Kashmiris over the last 30 years, as they had been enduring generations of insurgency, violence and terrorism. It had also contributed to the gap between Kashmir and the rest of the nation.
Other reasons, which the government did not spell out but which must have influenced its decision are related to international events in the neighbourhood. The situation emerging in the Western neighbourhood, i.e. Pakistan and Afghanistan and the possible re-ascendance of the Taliban in Afghanistan, calls for greater attention and care in the Kashmir region. Further, the emerging geopolitical dynamics in Afghanistan and the resultant China-Pakistan relations could have potentially led to more heat on the Kashmir situation in the months ahead.
Provisions of Jammu and Kashmir Reorganisation Bill, 2019
Subsequent to the Constitutional Order of 5th August, the Jammu and Kashmir Reorganisation Bill was introduced in Parliament. This bill has been passed and made applicable with effect from 31st October, 2019.
• It divides the state of Jammu and Kashmir into two new Union Territories (UTS), Jammu and Kashmir and Ladakh. Of the six Lok Sabha seats currently with the state of Jammu and Kashmir, five will remain with the Union Territory of Jammu and Kashmir, while one will be allotted to Ladakh.
• The UT of Jammu and Kashmir will have an Assembly, similar to those in Delhi and Puducherry. The Jammu and Kashmir Assembly will have a five-year term, not six, as was the earlier case.
• Section 32 of the Jammu and Kashmir Bill, 2019, proposes that the Assembly can make laws on any subjects in the State and Concurrent lists except on state subjects relating to ‘public order’ and ‘police’. This is also similar to Article 239A of the Constitution that is applicable to Union Territories of Puducherry and Delhi. However, in the case of Jammu and Kashmir, the Assembly can make laws on land, which it cannot do in the case of Delhi.
•Accordingly, the special status provided to Jammu and Kashmir under Article 370 has been abolished. It will no longer have a separate Constitution, flag or anthem. The citizens of Jammu and Kashmir will not have dual citizenship. As the new Union Territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in the Indian Constitution.
• Article 360, which can be used to declare a financial emergency, will now also be applicable. All laws passed by Parliament will be applicable to Jammu and Kashmir, including the Right to Information Act and the Right to Education Act. The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
• Also, Article 35A, which originates from the provisions of Article 370, is now null and void. As the Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights, the discriminatory provisions under Article 35A will now be unconstitutional.
Article 370 has always been seen by the Kashmiris as a marker of their separate identity and autonomy. Thus, there is a possibility of widespread protests and violence as a reaction to the dilution of Article 370. Terror elements in Pakistan might find Kashmir to be the most fertile ground for breeding terrorism. The unrest can affect the democratic progress that has been made so far. Thus, the situation requires careful handling by the Government of India so as to create normalcy as early as possible.
The union government must build trust with the people of Jammu and Kashmir. A sense of oneness will change the perception of people of Kashmir towards Indian government. Due attention should be given to address the socio-economic distress in rural areas. More democratic rights should be given to the people and political activities should be allowed to resume. Special focus should be given to educating and skilling the youth so that they do not feel alienated. The state should be restored to its past glory.
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