article 370

Historical Background of Article 370

It is important to be aware of Constitutional provisions surrounding Jammu and Kashmir concerning current affairs. The main provision in the Constitution of India dealing with the same is Article 370. Drafted earlier by Sheikh Abdullah and eventually by Gopalaswami Ayyangar, this article is placed in Part XXI of the said Constitution under the heading of Temporary, Transitional and Special Provisions. Till date, it had found a permanent place in the Constitution as the erstwhile Constituent Assembly of Jammu and Kashmir had not abrogated Article 370 before its dissolution. It exempts whole and absolute constitutional applicability over the state. This is done by limiting the Central Legislative power over the state. The entire creation of this provision was an outcome of the region’s accession to the Indian Union.

Read alongside Article 35A, and the Constitution provides that the people and residents of Jammu and Kashmir shall be subject to their own particular laws mainly with respect to ownership of property, citizenship and fundamental rights as well.

Furthermore, it takes away the absolute nature in which separation of powers is made between Center and State. The Seventh Schedule in the Constitution provides the three lists. Accordingly, ninety-four of the ninety-seven items in the Union List was applied to the state, and of the Concurrent List, twenty-six of the forty-seven items were applied. Legislation power on election matters too was granted to the State. Preventive detention was not applicable either.

Article 370 further prevents the Union Government from having the power to reorganize the borders of the state.

Relevance to current events

There had been three main Presidential Orders (1950,1952 and 1954) passed to preserve the internal autonomy of the State. This did not coincide with the current Union Government’s objectives, and it was on 5th August 2019, that the President of India- Ram Nath Kovind revoked the 1954 order through a constitutional order. It was then introduced as a resolution before the upper house of the Parliament (Rajya Sabha) with the objective to reorganize the current State of Jammu and Kashmir into two Union Territories- one being the Jammu and Kashmir region, on the western side and Ladakh, on the eastern side.

Such presidential orders are made in consonance with Article 370 (1)(d), which empower such orders after consultation with the Government of the State. Revocation of Article 370 would cause Article 35A to cease to exist. This order was termed as Constitution (Application to Jammu and Kashmir) Order, 2019.

What this means for Jammu & Kashmir

It is to be noted that this action of proposing such a resolution by the Home Minister does not amount to the scrapping of Article 370. There was no bill passed for an amendment in the Constitution. It is the new order that will supersede the previous ones.

The above action will cause the State Constitution of Jammu and Kashmir to be ineffective. Furthermore, this now allows Article 1 and Article 2 of the Indian Constitution to be applicable to the state. This will allow the Union to reorganize the state, thus converting the erstwhile state into two Union Territories which should have legislatures of their own. Also, the Governor of Jammu and Kashmir will now be called the Lieutenant Governor.

Article 370 allowed for dual citizenship that is one for the state and one for the country. Now, only single citizenship is available. Furthermore, the other provisions of the Constitution would apply, such as the applicability of the Right to Information, reservation for minorities, the applicability of Article 360 (financial emergency), etc. Children would benefit as they would be provided the Right to Education. There will also be an abrogation of the clause relating to permanent residents, i.e., Kashmiri women, who marry non-Kashmiri men, and their children are denied their right to inheritance. They may now claim inheritance in ancestral property. The police cadre is also expected to be redefined.

Actions which are taken for the furtherance

The opposition leaders of the region have not received the proposal well. Rather they have mentioned it as “blackest day in Indian democracy.” Foreseeing any insurgent activities or potential for breach of peace and tranquility due to the proposal, the Executive Magistrate in Srinagar had arrested former Chief Ministers of Jammu & Kashmir, Omar Abdullah, and Mehbooba Mufti.  Section 144, which prohibits an assembly of more than four people in an area, was also warranted by the Executive Magistrate in Srinagar and to be in effect from the midnight of 5th August. There is also reportedly a restriction to internet access and other communication, and this shall remain in force until further orders.

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