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CURRENT AFFAIRSEDITORIAL BRIEFSPOLITYTHE HINDU : AUGUST 2019

Scrapping of Article 370 : The 72 long years of struggle in Kashmir

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Article 370 which provides a special status to the state of Jammu and Kashmir is one of  the most heated topic today. The reason we all know that it has been revoked today ending the more than 70 year old struggle.

We all are aware of Article 370  and the related Article 35A of the Indian Constitution. Still, there are few details that everyone should be aware of.

What exactly is Article 370?
  • Article 370 of the Indian constitution gave a special status to the state of Jammu and Kashmir. 
  • It was  drafted in Part XXI of the Constitution. It was temporary in nature and contains special provisions with respect to the Jammu and Kashmir.
  • But now as of April 2018, according to the rulings of Supreme Court of Indian and the High Court of Jammu and Kashmir, Article 370 has now became a permanent part of Indian Constitution.
Article 35(A) along with Article 370 defined that the J&K  live under a special set of laws, including the one which is  related to citizenship, ownership of property, and fundamental rights, as compared to resident of other Indian states.



What is the history behind the enactment of Article 370?

It was in 1947 that the provision of Article 370 was drafted by Sheikh Abdullah who was appointed as the Prime Minister of Jammu and Kashmir by Raja Hari Singh and Jawaharlal Nerhu.

Like all other princely states, Jammu & Kashmir's original accession was basically on three matters: defence, foreign affairs and communications. 

Background :

India's Constituent Assembly, which was on his way to formulate a constitution for the whole of India, invited all the princely states to send representatives. Although a model constitution for the states was developed, in May 1949, the rulers and chief ministers of all the states met and agreed that it was not necessary to have separate constitutions for the states, therefore, they accepted the Indian Constitution as their own constitution.

Things were different when it came to Jammu and Kashmir, which accepted only those provisions of Indian constitution those were in accordance with the original text of 'Instruments of Accession'.

Hence, Article 370 was incorporated in the Indian Constitution which allows only those articles of Indian Constitution to empower Centre to make laws in Jammu and Kashmir which are in accordance with the State's Constitution.

Article 370 was temporary in nature and was supposed to last till the enactment of the State's Constitution but in January 1957, Jammu and Kashmir's constituent assembly dissolved itself without any change of revocation of Article 370.

According to the Supreme Court of India's ruling as well as that of State's High Court, the Article has now became a permanent part of the Indian Constitution.

History of Presidential Orders with respect to State of Jammu and Kashmir

There are 3 main Presidential Orders which were passed in 1950, 1952 and 1954 which permits parts of Indian Constitution applicable in the State.

PRESIDENTIAL ORDER OF 1950 or THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1950

  • It came into force w.e.f January 26, 1950 in contemporary with the Indian Constitution.
  • It clearly identifies the subjects and articles of Indian Constitution which are in correspondence with the Instrument of Accession under Article 370(b)(i).
  • This order was superseded by the 1954 Presidential Order.
PRESIDENTIAL ORDER OF 1952 or THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1952

  • Issued on 15th November, 1952.
  • It represented the abolition of 'Monarchy' of Jammu and Kashmir.
  • The Government of India summoned a delegation from Jammu and Kashmir in Delhi for discussing the relations between the Centre and the State of Jammu and Kashmir after which the 1952 Delhi Agreement was reached.
  • In August 1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replaced the position of monarch by an elected Head of State (called Sadar-i-Riyasat). 
PRESIDENTIAL ORDER OF 1954 or THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954
  • It came into force on 14th May, 1954.
  • This Order was enacted to implement the 1952 Delhi Agreement.
  • The abolition of the Monarchy as per the 1952 Order, created resentment and questions were put up on the Instruments of Accession of Kashmir.
  • It was during this Presidential Order that Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects').
    • Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.
  • Another important decisions taken under this Order of 1954 were :
    • Fundamental Rights were extended to Jammu and Kashmir (State's jurisdiction with respect to the provisions of Preventive detention for internal security and the provisions of land reforms were reserved)
    • Supreme Court's jurisdiction was extended to the State.
    • Central govt. was empowered to declare a National Emergency in case of external aggression but only in concurrence with the State government.
    • Financial relation of state with the Centre were place on equal grounds as that of other states.
    • Custom duties were abolished in State.


What is Article 35A which was enacted by the 1954 Presidential Order?

It was an article that empowered the Jammu and Kashmir state's legislature to define "permanent residents" of the state and provide special rights and privileges to those permanent residents.

As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.

What are the special provisions for the State of Jammu and Kashmir that were embodied in the Article 370 ?

There were 6 main provisions that were embodied in Article 370 for Jammu and Kashmir. These were :

  • Jammu and Kashmir was allowed to have its own Constitution and avoided the complete applicability of the Indian Constitution to the State.
  • The legislative powers of State was limited to only 3 matters i.e., defence, foreign affairs and communication.
  • It was only with the concurrence of State Government that the other constitutional powers of State can be extended to State.
  • The concurrence was only provisional and was to be ratified by Jammu and Kashmir's Constitutional Assembly.
  • The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened after which no further extension of powers was possible.
  • Amendment or Abrogation of Article 370 was to be done upon the recommendation of Jammu & Kashmir's Constituent Assembly.
Original Text of Article 370

Temporary provisions with respect to the State of Jammu and Kashmir
  • Clause (1) : Notwithstanding anything contained in this Constitution,—
    • (a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;
    • (b) the power of Parliament to make laws for the said state shall be limited to—
      • (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
      • (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
    • (c) the provisions of article 1 and of this article shall apply in relation to that State;
    • (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
      • Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
        • Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
  • Clause (2) : If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
  • Clause (3) : 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:
    • Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.


Previous efforts and judgements w.r.t. the abrogation of Article 370

In 2014, BJP pledged to integrate the state of Jammu and Kashmir into the Union of India as part of Bharatiya Janata Party manifesto for the 2014 general election. Attempts were made by the party along with its parent organisation, the Rashtriya Swayamsevak Sangh (RSS), for the abrogation of Article 370, after winning the elections.

In October 2015, the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be "abrogated, repealed or even amended.

In December 2016, the Supreme Court of India superseded a judgement of the High Court of Jammu and Kashmir which stated that Jammu and Kashmir had "absolute sovereign power" on account of Article 370 and held that the state of Jammu and Kashmir has "no vestige" of sovereignty outside the Constitution of India and its own Constitution is subordinate to the Indian Constitution.

On 3 April 2018, the Supreme Court of India declared that the Article 370 has acquired a permanent status and since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfill the mandatory provisions which are essential for its abrogation.

On 5th August 2019, i.e., today, Home Minister Amit Shah moved resolution to scrap Article 370 in the Rajya Sabha, and also reorganize the state with Jammu and Kashmir serving as one of the union territory with legislature and Ladakh region separated out as a separate union territory without a legislature.

Which parties supported and opposed the scrapping of Artcle 370 in Jammu and Kashmir?

The abrogation was supported by BSP, AIADMK, BJD, YSRCP, Shiv Sena, TRS, AAP, TDP and SAD.

Parties those opposed the resolution were Congress, PDP, National Conference, JD(U), CPI(M), and DMK.

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