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Legopedia

Article 370 : Past, Present and future everything you need to know

All of us are aware of the fact that there are many articles in the Indian constitution that has direct implication in the laws of our country. Article 370 is one of them. As per article 370 of the constitution of India the state of Jammu and Kashmir is given some special power. The state has been granted temporary autonomous status. The reason why this article had come into existence was the accession of Kashmir to the Indian sub-continent after independence.

If we dig into a bit of history we will see that Kashmir was a state with a Muslim majority. The result is that the Muslim population of Kashmir felt insecure. They felt afraid that they might lose their identity amidst a Hindu nation. Moreover, there was a lot of pressure from the radical Muslim groups to give special autonomy to the state of Jammu and Kashmir. So immediately after independence, the Indian government bestowed a temporary autonomous status to the state of Jammu and Kashmir. However, since its inception, the Article has gone through several changes.

The Provisions of Article 370

  • The Central Government needs approval from the State Government of Jammu and Kashmir on all matters of law apart from defence, Finance and Communication, and Foreign Affairs.
  • The Indian Government does not have the power to declare Financial Emergency in the state. In fact, an emergency can only be declared in Jammu and Kashmir on grounds of internal disturbance and instances of danger from a foreign enemy.
  • The state government in Jammu and Kashmir has full control over the governance of the state without any kind of interference from the Central government.
  • Article 370 ensures that citizens of any other state in India cannot buy property in Jammu and Kashmir.
  • If a woman from Jammu and Kashmir marries a man from any other state of India she loses her right to ownership in the state.

Who has the power to repeal this Article?

The President of India has the power to declare Article 370 null and void and take away all autonomy from the state. However, this needs to be done only after a recommendation from the Constituent Assembly of Jammu and Kashmir. At the same time, the President of India also has the power to take this right away from the Constituent Assembly of Jammu and Kashmir through a Constitutional Amendment

The Consequence of Article 370

It is true that the discord regarding the state of Jammu and Kashmir is quite huge. In fact, the matter is so serious that it has even been taken up the UN. This was the reason Article 370 was crafted so that the Muslim residents of the state could be appeased. But a middle path needs to be reached instead of letting the autonomy of the state grow. A step has already been taken in that direction as the Article now functions in the state in a much-diluted way. Moreover, the constitution of Jammu and Kashmir states that it is an integral part of the Indian Union and so the dangers of the state going away from the hands of the Indian government are negligible.

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 with 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 tranquillity 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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by ashish padhy

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