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ARTICLE 370 AND ITS ABROGATION: Overview

Jul. 24, 2020   •   Samiksha Gupta

Profile of the Author: Garv Singh is a 3rd year law student pursuing B.A.LLB from Amity Law School, Delhi, GGSIPU. He has a keen interest in the Indian Criminal Jurisprudence and Constitutional Law.

INTRODUCTION

Article 370 was drafted in 1947, by Sheikh Abdullah, the then PM of Jammu and Kashmir appointed by Maharaja Hari Singh and Pandit Nehru. This article of the Indian constitution gave special status to Jammu and Kashmir, a region located in the northernmost part of the Indian subcontinent which was administered by India as a state from 1954 to 5th August 2019, after which the current Indian Government passed the Jammu and Kashmir Reorganization Act 2019, making it a separate Union Territory and thereby permanently scrapping away the special status granted under Article 370 to the citizens of Jammu and Kashmir.

Article 370 specified that barring Defense, foreign affairs, communication, and matters specified in the instrument of accession, the Indian Parliament requires the State government’s consensus for applying all other laws.

UNDERSTANDING ARTICLE 370

  • Under part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of J&K had been accorded special status under article 370.
  • It allowed state assembly to make its own constitution, have its own separate flag, national anthem, and penal code.
  • It also covered within itself Article 35A which incorporated a separate set of laws for state residents, such as citizenship, ownership of property and providing special laws for the permanent residents of the state.
  • Due to the said enactments, citizens from other states couldn't purchase land or property in the state.
  • Centre did not have the power to declare a financial emergency under Article 360 in the state.

SCRAPPING OF ARTICLE 370 BY

  • The Indian Government on August 5th, 2019 announced that special status granted under Article 370 to Jammu and Kashmir has come to an end. Home minister Amit Shah said, "Not all the provisions of Article 370 will now be implemented in Jammu and Kashmir."
  • However, the most important component of Article 370 for the purposes of these recent developments was Article 370(3), which gives the President of India, the power to amend or repeal Article 370 completely through generating a public notification. This was, therefore, done through a Presidential Order, which in effect superseded previous Presidential Orders issued under Article 370.
  • This means that this move of the Government has given full reverence to the Indian Constitution in Jammu and Kashmir as well.
  • Which also means that the separate Constitution of Jammu and Kashmir ceases to be in action in the state. With state constitution declared out of order and Articles 1-2 of the Indian Constitution now applicable to Jammu and Kashmir, the Central Government got the authority to redraw the map of the state.
  • The home minister, consequently, pushed another resolution for bifurcation of Jammu and Kashmir. The resolution after being adopted being passed as the Jammu and Kashmir Reorganization Act 2019, turns the existing state of Jammu and Kashmir into two Union Territories namely Jammu and Kashmir and Ladakh.
  • The Union Territory of Jammu and Kashmir will have a legislature. Its new status will be comparable with that of Puducherry and Delhi. The Governor of Jammu and Kashmir will now be designated as a Lieutenant Governor.
  • This move has given an individual identity to Ladakh as a Union Territory without a legislature of its own just like the five other centrally administered U.T.’s which do not have a separate legislature of their own.
  • The independent state constitution allowed an independent penal code for Jammu and Kashmir. With separate constitution gone, the Indian Penal Code will surpass the Ranbir penal code.

SCRAPPING OF ARTICLE 35A

Alongside Article 370, Article 35A, which distinguished between the permanent residents of Jammu and Kashmir and the outsiders, will also cease to have any effect.

It defined that the J&K state’s residents live under a separate set of laws including those related to citizenship, ownership of property and fundamental rights as compared to the residents of the other parts of the State. This article in simple terms dealt with discrimination in terms of buying and selling of property within the state, moreover being called as a non-permanent citizen of the state basically didn’t even have the provision of the right to vote and many other discriminatory rules being applicable through the enactments.

The educational and employment sectors will now open up to all citizens of India without any discrimination caused by the clause of permanent residents under Article 35A. The central quota laws in school-college admissions and state government jobs will apply just like other Indian states.

Purchasing land and owning property by people, considered outsiders till now, has become possible. This was again considered a key impediment for corporates in setting up business units in Jammu and Kashmir.

Also, the section relating to permanent residents forbid Kashmiri women and their children, who marry non-Kashmiri men, their right of inheritance. They may now claim inheritance in ancestral property as well.

TIMELINE OF PASSAGE OF J&K REORGANIZATION ACT, 2019

President Ram Nath Kovind on 5th August, 2019, promulgated the Constitution (Application to J&K) Order, in concurrence with the Government of state of Jammu and Kashmir with immediate effect. The order superseded the Constitution (Application to J&K) Order, 1954 and states that all provisions of the Constitution of India shall apply to the state of J&K.

On 5th August, 2019, Home Minister Amit Shah moved the resolution to scrap Article 370 in the Rajya Sabha, and also reorganize the state of J&K and Ladakh region serving as separate UT’s. The bill got passed in Rajya Sabha on 5th August, 2019 and in Lok Sabha with 351 to 72 votes on 6th August, 2019. President gave assent to Jammu and Kashmir Reorganization Bill on 6th august, 2019.

Earlier, based on the statutory resolution passed by the parliament recommending the modification of Article 370 of the Constitution, President Ram Nath Kovind issued a notification in exercise of his powers under Articles 370(3) r/w 370(1) to repeal it.

The legislative assembly of the J&K is dissolved and the state is under Presidential rule since November 2018, the recommendation of the Parliament has been treated as the recommendation of legislative assembly by the President to issue august 5th notification. [1]

J&K Before and after revocation of article 370.[2]

(Before revoking Article 370)

  1. Special powers exercised by J&K
  2. Dual citizenship.
  3. Separate flag for J&K.
  4. Financial emergency (A.360) NA
  5. No reservation for minorities.
  6. R.T.I not applicable.
  7. Duration of legislative assembly: 6 years
  8. If a woman from J&K marries outside the state, she would lose the citizenship of the state.
  9. Panchayats did not have any rights.
  10. Right to education was not applicable.
  11. Indian citizens from other states cannot buy land in J&K.

(After revoking Article 370)

  1. No special powers exercised by J&K.
  2. Single citizenship.
  3. Tricolor flag for everyone.
  4. A.360 will be applicable.
  5. Reservations will be applicable.
  6. R.T.I will be applicable.
  7. Duration of legislative assembly: 5 years
  8. If a woman from J&K marries outside the state, she will still retain all her rights, and Indian citizenship.
  9. Panchayats will have the same rights as other states.
  10. Children in the state will benefit from RTE.
  11. Citizens from other states will now be able to purchase land in J&K.

CONCLUSION

Hence, the Article that was an identity for some but which caused an ache of discrimination for few others, have finally been annulled and with an optimistic approach by the Parliament of India now, it will create a new era for the people of Jammu and Kashmir as well as the citizens of India as a whole. With the scrapping of Article 370, the Indian constitution seems more supreme and its like a void been filled. We now can only hope for a better future and proper implementation of developmental schemes in this region as well as that of Ladakh, which was till now under the shadow of J&K. With it also becoming an independent UT, it will march towards more development and prosperity along with a new identity for the Union Territory of Jammu and Kashmir.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.


FAQs:

Q1. Who penned down Article 370 in Indian Constitution?

Ans. Sir Narasimha Ayyangar, in 1946, was elected to the Constituent Assembly of India, which summoned in December 1946 with Jawaharlal Nehru as its president. Shri. Ayyangar was appointed to the seven-member Drafting Committee that formulated the Indian Constitution and in turn penned the Article 370 in the Indian constitution.

Q2. Now after the Reorganization Act, how many States and UT’s are there in India?

Ans. 28 states and 9 Union Territories are there in India.

[1] Manorama yearbook 2020, article 370 and 35A.

[2] Times of India news


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