Case Study: Article 370

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Introduction – What does Article 370 mean?

Under this Article, the Centre needs the state’s concurrence to apply laws – except in cases of defence, foreign affairs, finance and communications. The state’s residents live under a separate set of laws, such as laws relating to citizenship, ownership of property, and fundamental rights, as compared to other Indians. Therefore, this provision prohibits Indian citizens from other states from purchasing land or property in Jammu & Kashmir.

Under Article 370, the Centre has no power to declare financial emergency under Article 360 on the State. It can only declare an emergency in the state of war or internal disturbance.

Article 370 was supposed to be a temporary provision, to last till the formulation and adoption of the State’s Constitution. It comes under Part XXI of the Indian Constitution, which deals with “Temporary, Transitional and Special Provisions”. However, the State’s constituent assembly dissolved without abrogation or amendment of Article 370. It was later held to have acquired permanent status through decisions of Supreme Court and High Court.

History and Formation

When India gained Independence from the British, the Indian Independence Act, 1947 introduced the Instrument of Accession (IoA). The Act provided three options: either to remain an independent country, join India, or join Pakistan. J&K initially decided to remain independent but ended up joining India after India saved the state from an invasion by Pakistan.

The original accession of state was on three matters, namely, defence, foreign affairs, and communications. However, at the time of drafting the Indian Constitution, the representatives of the Constituent Assembly of the state proposed that only those provisions of the Indian Constitution which correspond to the original IoA should apply to the state.

This means that the Parliament needs the Jammu and Kashmir government’s approval for applying laws in its state – except in cases of defence, foreign affairs and communications.

Accordingly, Article 370 was incorporated into the Constitution of India. It gives special status to the residents of J&K and permits the state to draft its own constitution. It restricts Parliament’s powers in respect of J&K, other than those relating to defence, foreign affairs and communications. 

Revocation of Article 370

Union Home Minister, Amit Shah, introduced a Bill to remove Article 370 in the Rajya Sabha. The government also introduced a Bill for the re-organisation of Jammu and Kashmir. The Bill proposed to make J&K a Union Territory with legislature and Ladakh a Union Territory without a legislature.

Clause 3 of Article 370 says, “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.” 

Instead of scrapping Article 370, the government used the power given by the same Article to the President to make the provision ineffective. Scrapping of the Article would require a constitutional amendment, following the procedure specified in Article 368. But by invoking Article 370(3), the government has cleverly bypassed the amendment route.

After Amit Shah proposed that Article 370 will not be applicable after the Order receives Presidential assent, the Upper House witnessed massive uproar. The Opposition was completely against the Centre over the move.

Before the introduction of the bill, the Kashmir issue shook the Rajya Sabha as Congress leader, Ghulam Nabi Azad, raised the current situation in Kashmir. Entire Kashmir is under curfew. It’s a war-like situation. Kashmir is on edge as the authorities have suspended mobile phone and internet services and either “arrested” or “detained” several leaders in fast-paced developments on Sunday night. Mahindra group Chairman, Anand Mahindra, has said that one could not pretend that it was just another Monday morning as the country is waiting for the Centre’s announcement on the Kashmir issue after a Union Cabinet meeting. “Cannot pretend this is just another Monday morning”, “Can only pray for the safety of everyone there & for an outcome that makes the nation stronger & the future more positive.” Anand Mahindra tweeted.

Article 370, which gives special status to Jammu & Kashmir, has been revoked by the President of India, Ram Nath Kovind, under the presidential order issued by him (Constitution (Application to Jammu and Kashmir) Order, 2019) in exercise of his powers conferred on him by clause (1) of Article 370 of the Constitution. The order comes into force “at once”. The President has also issued a presidential order revoking Article 35A of the Indian Constitution.

What happens to J&K now?

After Kashmir’s special status is gone, people from anywhere in India will be able to buy property and permanently settle in the state. 

Jammu & Kashmir will now be a separate Union Territory with a Legislature. “Keeping in view the prevailing internal security situation, fuelled by cross-border terrorism in the existing state of Jammu & Kashmir, a seperate Union Territory is being created”, said a notification delivered by Amit Shah.

Under the notification, the Ladakh region is also being given the special status of a Union Territory, without a legislature. 

The laws which are applicable to other Indian citizens will now apply to Jammu and Kashmir as well. 

The Centre will be in direct control of law and order and police in the Union Territory (UT) of Jammu and Kashmir (J&K) through the Lieutenant Governor (LG), while land will be a subject under the elected government there, officials said on Sunday. Land, and the rights over it, will be with the elected government of the Union Territory of Jammu and Kashmir, unlike in Delhi where the LG exercises control through the Delhi Development Authority (DDA), a central government entity.

Jammu and Kashmir will now have a Lieutenant Governor (LG) and the maximum strength of its assembly will be 107, which will be enhanced to 114 after a delimitation exercise. Twenty-four seats of the Assembly will continue to remain vacant as they fall under Pakistan-occupied Kashmir (PoK).

According to the Jammu and Kashmir Reorganisation Act, 2019, the Legislative Assembly of the UT of Jammu and Kashmir may make laws for the whole or any part of the union territory with respect to any of the matters enumerated in the state list of the Constitution except the subjects mentioned in entries one and two – ‘public order’ and ‘police’ respectively – or the Concurrent List in the Seventh Schedule of the Constitution.

Matters related to land, that is to say, rights in or over it, land tenures, transfer and alienation of agricultural land, land improvement and agricultural loans will be under the hand of the elected government of the Union Territory of Jammu and Kashmir.

Police, law and order, and land in the Union Territory of Ladakh will be under the direct control of its LG, through whom the Centre will administer the region. According to the Act, Ladakh will not have a legislative assembly.

On and from the appointed day, that is October 31, when the two newly created UTs will come into existence, the High Court of Jammu and Kashmir shall be the common high court for the UTs of Jammu and Kashmir, and Ladakh.

The judges of the high court of Jammu and Kashmir for the existing state of Jammu and Kashmir holding office immediately before the appointed day shall become on that day the judges of the common high court.

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