Complete Analysis On Article 370 And Its Abrogation

Key Takeaways

• Home Minister Amit Shah introduced bills to repeal Article 370 and Article 35A in the Rajya Sabha on August 5, 2019. The Article gave Jammu and Kashmir a special status.
• The Bill was passed with a majority. In total, four bills dealing with the repeal of Article 370 were introduced and passed in Parliament.
• Article 370 was brought into force in 1949.
• Maharaja Hari Singh signed the agreement in October 1947, declaring that Jammu & Kashmir is part of India but will enjoy special privileges. However, India will have complete autonomy in foreign policy, communication, finance, and defence.
• Article 35A of the Indian Constitution, enacted through a constitutional order in 1954, gave state legislatures the power to define "permanent residents."
• Article 370 is still in the Indian Constitution, so it has not been repealed; instead, it has been amended, but with no powers.
• J&K has no special privilege after the abrogation.
• Supreme Court is still hearing pleas regarding the constitutionality of the New Acts and Orders.

Introduction

The state of Jammu and Kashmir has always been an unresolved issue. On the advice of President Ram Nath Kovind, Home Minister Amit Shah introduced bills to repeal Article 370 and Article 35A in the Rajya Sabha on August 5, 2019. The Article gave Jammu and Kashmir a special status. Also, the Bill proposed splitting Jammu and Kashmir into two parts, Jammu Kashmir and Ladakh.

The Bill was passed with a majority. In total, four bills dealing with the repeal of Article 370 were introduced and passed in Parliament. During the Parliamentary debate, Mr. Amit Shah stated that Article 370 did not help the development of Kashmir and discriminated against women. He also noted that terrorism would be eradicated, and the region will develop. Residents of Jammu and Kashmir will now have access to education, which was previously denied to them. Hence, the two union territories were established on Sardar Patel's birthday, October 31.

History of Article 370

In the early nineteenth century, Ranjit Singh took over the state of Jammu and Kashmir and gave it a proper shape. At the same time, the British East India Company's foundation was strengthening. The Anglo-Amritsar Treaty established the fate of Jammu & Kashmir, which they sold for Rs 75 lakh to Dogra king Gulab Singh in 1846. The company divided India and Pakistan in 1947. Raja Hari Singh was the ruler of Jammu and Kashmir. This princely state could have ceded to India or Pakistan or remained sovereign.

Raja Hari Singh chose sovereignty over joining two newly independent nations. However, the state was attacked by raiders from the neighbouring Northwest Frontier Province, backed by Pakistan. Maharaja Hair Singh went to the Indian PM for help. Jawaharlal Nehru told Hari Singh he could not send his military because the state was not a part of India.

In these circumstances, Maharaja Hari Singh signed the agreement in October 1947 declaring that Jammu & Kashmir is part of India but will enjoy special privileges. However, India will have complete autonomy in foreign policy, communication, finance, and defence. Article 370 of the Indian Constitution ensures that the state has special privileges.

Article 370 of the Indian Constitution was drafted by sheikh Abdullah, the prime minister of Jammu and Kashmir, who was appointed by Maharaja Hari Singh and Jawaharlal Nehru in 1947. Sheikh Abdullah wanted Article 370 to be permanently incorporated into the Indian Constitution and absolute autonomy for states that did not comply with the Centre. Gopalswami Ayyangar, a minister and former diwan to former Maharaja Hari Singh, wrote the Article's final draft. Hence, Article 370 was brought into force in 1949.

Article 370: Scope and Applicability

Article 370 of the Indian Constitution is a temporary provision that provides Jammu and Kashmir with special status under Part XXI of the Indian Constitution, which deals with temporary, transitional, and special provisions. The Indian Parliament is prohibited from increasing or decreasing the state's borders under this Article. All provisions that apply to other states do not apply to Jammu & Kashmir.

Only Jammu & Kashmir residents have dual Citizenship; for all other Indians, single Citizenship applies. Except for defence, finance, communication, and foreign affairs, Parliament needs the state's permission to enact laws. In comparison to other citizens of India, residents of Jammu and Kashmir are subject to a separate set of regulations governing property ownership, Citizenship, and fundamental rights. As a result, other Indians cannot buy land in J&K.

Also, Minorities had no reservations. The people did not have rights to information, and women who marry non-Kashmiris must leave their property. However, several laws are applicable in J&K. They are:

• All India Services Act,1951
• Income Tax Act,1961
• Border Security Force Act,1968
• The Central Laws (Extension to Jammu and Kashmir) Act,1968,
• The Central Goods and Services Tax Act,2017, etc.

In 2018, the Supreme Court ruled in Kumari Vijayalakshmi Jha vs. Union of India & Anr (W.P.(C) 9300/2015) that Article 370 is now a permanent feature of the Indian Constitution.

Under Article 370 of the Indian Constitution, the President had the power to issue orders to apply the Constitution's provisions with modifications, exceptions, and amendments. In P. L. Lakhanpal vs. the State of J&K, the Supreme Court upheld this power, which can be seen in several other cases.

In addition, Article 35A of the Indian Constitution, enacted through a constitutional order in 1954, gave state legislatures the power to define "permanent residents." Permanent residents were entitled to property rights, employment, scholarships, and other social benefits.

Abrogation of Article 370

In SBI vs. Santosh Gupta (2016), the Supreme Court held that because India's Constitution is superior to J&K's, Parliament had legislative authority to enact the provisions. As well as, the court held that the Indian Constitution applies to J&K via the 1954 Presidential Order and that Article 370(1)(b) does not limit Parliament's power.

The Indian government, through a series of far-reaching measures, revoked the special status granted to Jammu and Kashmir under Article 370 of the Indian Constitution on August 5, 2019. The President issued the Constitution (Application to Jammu and Kashmir) Order, 2019. It replaced the Constitution (Application to Jammu and Kashmir) Order, 1954.

The government imposed Section 144 of the CrPC in several areas during the revocation of Articles 370 and 35A in Kashmir. The District Magistrate issued orders on the night of August 4, 2019, imposing section 144 beginning at 6 a.m. on August 5, 2019. Mobile phone and Internet services were shut down, and three former chief ministers of the state of J&K were placed under house arrest for urging all political parties to unite against the central government's action. However, the government's move elicited angry responses.

The Presidential order of August 2019 stated that the Indian Constitution applied to Jammu and Kashmir. This effectively abolished Jammu and Kashmir's separate Constitutions, replacing it with a single document governing all Indian states. The President signed the order with the state of Jammu and Kashmir's "concurrence." Since President's rule was in effect in the state at the time, this meant the Governor's approval. The order was issued under Article 370, the third clause, which authorised the President of India to declare the Article inoperative with exceptions and modifications on behalf of the state constituent assembly.

To get around the non-existent state constituent assembly, the President invoked Article 370 Clause (I), which allows him to amend the Indian Constitution on Jammu and Kashmir-related issues. So he amended Article 367, which deals with constitutional interpretation. He changed the wording to 'Legislative Assembly of the State.' Since the state legislature is suspended, any reference to the legislature is interpreted as referencing the governors of Jammu and Kashmir. The Governor is a central government appointee. So, the Indian Parliament now represents the state legislature. Thus, the Indian Home Minister moved a Rajya Sabha resolution to recommend that Article 370 be declared inoperative.

On August 5, 2019, the Rajya Sabha debated and passed the statutory resolution seeking revocation of the special status under Article 370 and the state reorganisation bill with 125 (67%) votes in favour and 61 (33%) votes against. For the reorganisation bill, the Lok Sabha voted 370 (86%) in favour and 70 (14% against) on August 6. For the revocation resolution, 351 in favour and 72 against. Hence, the Bills were passed.

Effects of the Abrogation

Article 370 was not repealed by the Presidential order signed by India's President. However, the special status of Jammu and Kashmir has been revoked, citing this very Article. In other words, the government's action makes the Indian Constitution fully applicable in Jammu and Kashmir.

Some of the major changes are:

• No special privilege to the state.
• Single Citizenship will only be allowed, and the Tricolor will be the only flag.
• Minorities will be eligible for 16% reservation.
• People from other states will now be able to purchase land or property in J&K.
• If a woman marries out of state or country, she will still retain all her rights and Citizenship.
• Children in the state will also be liable for RTE.
• Article 360 of financial emergency will apply to them.
• The Indian Constitution's article 356 would apply to the state of Jammu and Kashmir. It indicates that the President has replaced the state's Governor.
• The central government will also have direct control over the deployment and control of police forces.

Effects of the Amendment

• Article 370 is still in the Indian Constitution, so it has not been repealed; instead, it has been amended, but with no powers.
• Article 35A in Appendix I of the Constitution, inserted with broad powers granted by Article370(1), has become ineffective since the source, Article370(1), was removed.
• Article 370, clauses (2) and (3) of the Indian Constitution have been declared null and void, except for clause (1).

Reactions to the Amendment

The BJP government took this action, dividing the state of Jammu and Kashmir into two union territories. India has received a variety of responses from around the world. The majority of people were pleased with the central government's decision, while some were not and claimed that it hurt residents' feelings.

Pakistan and China were against it, claiming that the Centre should not have made this decision. In response to this remark, Rajesh Kumar, spokesman for the Ministry of External Affairs, stated that the reorganisation bill 2019 related to Jammu and Kashmir was an internal matter. They had no right to interfere in their personal affairs if they were not interfering in their internal affairs.

Conclusion

Since then, the amendment has been constantly challenged, and the cases have been brought before the Supreme court. The Apex court has been hearing pleas and petitions. The Jammu and Kashmir (reorganisation) Act, 2019, and the President's Orders are allegedly unconstitutional and void.

In the recent case of Manohar Lal Sharma v. Union of India (W.P. (C) 1013/2019), the petitioners have been impleading and challenging the constitutional validity of the abrogation. The constitutionality of the presidential orders abolishing Jammu and Kashmir's special constitutional status will be decided by the Supreme Court. The constitutional bench will also determine whether the Jammu and Kashmir Reorganisation Act, 2019, which divided the state into two Union Territories, is constitutional. However, hopefully, the state would be protected from terrorism soon because of the amendment. After the chaos resides, it can be hoped that the abrogation will bring unity and peace for the state of J&K and U.T. Ladakh.