What is Article 370 and why is it politically significant


Article 370 of The constitution is a ‘temporary provision’ which promises to grant autonomous status to Jammu and Kashmir and limits Parliament’s powers to make laws for the state. Under Part XXI of the Constitution titled “Temporary, transitional and special provisions", Article 370 is categorised as a “temporary provision with respect to the State of Jammu and Kashmir".

Notwithstanding anything in the Constitution, the Article limits Parliament’s powers to make laws to those matters in the Union and Concurrent Lists, in consultation with the state government, as declared by the President, which should correspond with matters specified under of Instrument of Accession, the statute says. The Jammu and Kashmir Assembly currently stands dissolved.

In effect, Article 370 says that Parliament will need the state government’s concurrence for applying any law, except those that fall in the domains of defence, foreign affairs, finance and communications. Issues like ownership of property, fundamental rights and citizenship are covered under a separate law for Jammu and Kashmir.

It also lays down that only two Articles of the Constitution will apply to Jammu and Kashmir – Article 1 which defines India and Article 370 itself. The provision was included in the Constitution on 17 October, 1949.
ARTICLE 370 embodies six special provisions for Jammu and Kashmir.
First, it exempted the State from the provisions of the Constitution providing for the governance of the States. Jammu and Kashmir was allowed to have its own Constitution within the Indi an Union.
Second, Parliament's legislative power over the State was restricted to three subjects - defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only "consultation" with the State government was required since the State had already accepted them by the Instrument.
But, third, if other "constitutional" provisions or other Unio n powers were to be extended to Kashmir, the prior "concurrence" of the State government was required.
The fourth feature is that that concurrence was provisional. It had to be ratified by the State's Constituent Assembly. Article 370(2) says clearly: "If the concurrence of the Government of the State... be given before the Constituent Assembly for the pu rpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon."
The fifth feature is that the State government's authority to give the "concurrence" lasts only till the State's Constituent Assembly is "convened". It is an "interim" power. Once the Constituent Assembly met, the State government could not give i ts own "concurrence". Still less, after the Assembly met and dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Kashmir indefinitely. The power has to stop at the point the State's Constituent Assembly draft ed the State's Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Const itution itself. Once the State's Constituent Assembly had finalised the scheme and dispersed, the President's extending powers ended completely.
The sixth special feature, the last step in the process, is that Article 370(3) empowers the President to make an Order abrogating or amending it. But for this also "the recommendation" of the State's Constituent Assembly "shall be necessary before the President issues such a notification".
Why is the Article so important to keep Jammu and Kashmir as a part of India?
·         According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy.

·         The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, shall not apply to the state of Jammu and Kashmir.
·         Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370.
·         In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of a suitable article to be included in the Constitution.
·         Article 370 was eventually drafted by Gopalaswami Ayyangar.
·         Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir.
·         Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions.
·         The original draft explained "the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948."
·         On November 15, 1952, it was changed to "the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office."
·         Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.
Abrogation of article 370
Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment "shall have effect in relation to the State of Jammu and Kashmir" unless applied by Order of the President under Article 370. That requires the concurrence of the State's government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says: "The provisions of Article 1 and of this Article shall apply in relation to that State". Article 1 is thus applied to the State through Article 370.
Key changes after amendment :
·         The President had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to Kashmir. However, the drastically altered Article 370 will remain on the statute books.
·         While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.
·         The notification by the president has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir.
·         The Bill proposes wide powers to the Lieutenant Governor of the proposed Union Territory of Jammu and Kashmir and makes it the “duty” of the Chief Minister of the Union Territory to “communicate” all administrative decisions and proposals of legislation with the LG.
·         All Central laws and State laws of J&K would apply to the new Union Territories of J&K and Ladakh.
·         Assets and liabilities of J&K and Ladakh would be apportioned on the recommendation of a Central Committee within a year.
·         Employees of State public sector undertakings and autonomous bodies would continue in their posts for another year until their allocations are determined.
·         The police and public order is to be with the Centre.
·         The notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.
Impact:
  1. The tabling of the proposed Reorganisation Bill is also proof that the long reign of the 1954 Order has ended. The 1954 Order had introduced a proviso to Article 3, namely that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State“. That power of the State Legislature to give prior consent does not exist anymore. This has provided a free hand to the Centre to table the Reorganisation Bill.
  2. With the removal of the 1954 Order, the power of the State Legislature ceases to exist and Parliamentary laws, including that of reservation, would apply to Jammu and Kashmir as it does in other parts of the country.
  3. The government called this the end of “positive discrimination” and the closing of the “chasm” between residents of J&K and citizens of other parts of the country.
  4. The removal of the 1954 Order further also negates a clause which was added to Article 352. The Order had mandated that no proclamation of Emergency on grounds “only of internal disturbance or imminent danger shall have effect” in the State unless with the concurrence of the State government.
Role and powers of the Lieutenant Governor  after amendment
The Bill specifies that the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh will have a common Lieutenant Governor.
·         Appointment of L-G in Ladakh: The President shall appoint the L-G under article 239. The L-G will be assisted by advisors appointed by the Centre since the Union Territory will not have a Legislative Assembly.
·         In the case of Union Territory of Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall outside the purview of powers conferred on the Legislative Assembly, in which he is required to exercise any judicial functions, and/or matters related to All India services and the Anti-Corruption Bureau
·         The Chief Minister shall be appointed by the L-G who will also appoint other ministers with the aid of the CM. The L-G shall also administer the oath of office and of secrecy to ministers and the CM.
·         The L-G will have the power to promulgate ordinances which shall have the same force and effect as an act of the Legislative Assembly assented by the L-G.

Is this all legal?

According to the constitution, Article 370 could only be modified with the agreement of the "state government". But there hasn't been much of a state government in Jammu and Kashmir for over a year now. This meant the federal government only had to seek the consent of the governor who imposes its rule.
The government says it is well within its rights to bring in the changes and that similar decisions have been taken by federal governments in the past.


Article 35 A
 

Article 35A gives the Jammu & Kashmir Legislature full discretionary power to decide who the 'permanent residents' of the state are. It gives them special rights and privileges regarding employment with the state government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the state government provides. It also allows the state legislature to impose any restrictions upon persons other than the permanent residents regarding the above.

It was inserted through the Constitution (Application to Jammu and Kashmir) Order, 1954, which was issued by President Rajendra Prasad under Article 370, on the the advice of the Nehru-led Union Government.

When the J&K Constitution was adopted in 1956, it defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has lawfully acquired immovable property. 
To guarantee these special rights and privileges, the Article says no act of the state legislature that comes under it can be challenged for violating the Constitution or any other laws.

Historical Background

  • Article 35A was incorporated into the Constitution in 1954 by order of the then President Rajendra Prasad as advised by the Jawaharlal Nehru Cabinet. This controversial order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which led to the extension of Indian citizenship to the State subjects of Jammu and Kashmir.
  • It was under Article 370 (1) (d) of the constitution that this unique Presidential order was issued. This provision allows the President to make certain exceptions and modifications to the Constitution for the benefit of State subjects of Jammu and Kashmir. In this way, Article 35A was added to the Constitution as a proof of the special consideration the Indian government bestowed upon the permanent residents of Jammu and Kashmir.

Who is a Permanent Resident of J&K?

The issue of the definition of the permanent resident of J&K is at the heart of the controversy surrounding Article 35A. The 1956 Jammu and Kashmir Constitution actually defines a Permanent Resident as one who must be a citizen of India and a state subject on May 14, 1954, or a resident of the state for ten years, and owns immovable property in the state .

Negative Aspects of Article 35A

  • It forbids Indian citizens from settling in the state, acquiring immovable properties, seeking employment in the state.
  • The critique of this article from the angle of women s rights is equally strong. If a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir, then she would lose her property right and their children also become ineligible to claim the property of their mother.
  • It conflicts with (rather violates) fundamental rights under Articles 14, 19 and 21 of the Constitution
  • Critics also allege that Article 35A has catalysed in radicalization and aids separatist ideology.
  • Not granting permanent resident status to the West Pakistan refugees is very inhuman and grossly undermines their well-being. It also undermines their faith in the goodness of India as well as its impartial judicial system.
  • Article 35A also adversely affects the economic development of the state.

Why scrapping Article 35A would be a bad idea?

  • The removal of Article 35A would change the demography of Kashmir. The separatist might fan anti-India feelings in the valley by politically misusing the issue. The hardening of the posture by the separatists will consequently disturb normalcy in the state.
  • The removal of Article 35A would also indirectly impact the special provision bestowed upon Mizoram, Nagaland etc. under Article 371.
  • It is also alleged that it will lead to erosion of Jammu and Kashmir s autonomy.


How Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”?
·         It treats non-permanent residents of J&K as ‘second-class’ citizens.
·         Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.
·         Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
·         Further, the issues of refugees who migrated to J&K during Partition are not treated as ‘State subjects’ under the J&K Constitution.
·         It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
·         The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).


Challenges ahead for article 370 and 35A:
  1. The move will be legally challenged on grounds of procedural infirmities and, more substantively, that it undermines the basic feature of the compact between Delhi and Srinagar that was agreed upon in 1947.
  2. Law and order maintenance challenge.
  3. The President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly.
  4. While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two Union Territories.
  5. But beyond the legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the security cordon is lifted from the State.
  6. What was unbecoming is the unwillingness to enter into consultation with the mainstream political leaders; in no other State would former Chief Ministers have been dealt with so cavalierly.
International reaction
On the international front, the UN, U.S. and China have rebuffed Pakistan on all fronts in its effort to seek international mediation and intervention in its campaign against New Delhi’s recent move. Even Russia is backing India and said that “India’s J & K move was carried out within framework of the Indian Constitution.”
The biggest blow came from the influential United Arab Emirates, which stated that Kashmir was an internal matter for India, withdrawing any support to raise the issue internationally.

Way forward
The battle for doing away with 370 was easy. The battle for the hearts and minds (of people) is the larger war to be wonIt’s not a real estate issue, it’s about the welfare of the people that was being compromised by a false sense of autonomy.



India is the only landmass with an unbroken democracy. It is the world’s largest, with more voters than people in the EU and US combined. The world now recognizes India’s worth as a democratic nation in a dangerous neighbourhood and wants it as an ally. India wants global engagement in its self-interest. 
This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities.
We must be able to make Kashmiri Muslims understand that all manner of cultural markers over 2500 years of Kashmiri history (right from 500 BCE onwards) display unequivocally a Kashmir that was intensively integrated with the rest of India. In the face of this historical reality of Kashmir, Article 370 as an exclusionary means artificially separating Kashmir from the rest of the country was an anomaly that has now been removed.
We must promote pluralism in the state so that all communities can live together as they did before Pakistani trained militants forced Kashmiri Pandits to leave Kashmir valley. Intra-Kashmiri dialogue, exchanging programs of students, writers, artists to offer their strengths in all the regions will definitely help in reconnecting and reintegrating hearts and minds of the people. 




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