Title : ARTICLE 370 OF THE INDIAN CONSTITUTION

Date : Nov 21, 2021

Description :

Based on an News Article published in the ‘The Hindu’ on 20th November on Page Number 8

Useful for UPSC CSE Prelims and Mains (GS Paper II)

Background of this news:

 

• The Constitution (Application to Jammu and Kashmir) Order, 2019 was promulgated by the President of India on August 5, 2019. It revokes Jammu & Kashmir's special status granted under Articles 370 and 35A of the Constitution.

• The Jammu and Kashmir Reorganisation Bill 2019 was introduced separately to divide the state into two union territories: Jammu and Kashmir (with legislature) and Ladakh (without legislature).

• The Economically Weaker Sections (EWS) Reservation (Second Amendment) Bill, 2019, was also introduced to extend EWS reservation in educational institutions and government posts in Jammu and Kashmir.

 

What is the meaning of Article 370:

 

• On October 17, 1949, the Indian Constitution was amended to add Article 370, a 'temporary clause' that exempts Jammu and Kashmir from the Indian Constitution, allowing it to establish its own constitution and limiting the Indian Parliament's legislative powers in the state.
• In summary, it granted the state exceptional status, allowing the J&K assembly to write its own laws with the exception of communications, defense, finance, and foreign affairs.
• Jammu and Kashmir has its own constitution, flag, and penal code as a result.

 

What does Article 35A entail:

• Article 35A was added to the constitution as part of revisions made by a presidential order issued under Article 370 in 1954.
• It grants J&K the authority to proclaim a group of people "permanent residents" of the state.
• It also allows the government to grant special rights and privileges to such individuals in terms of public employment.

• Immovable property acquisition in the State Settlement in various sections of the State.
• Scholarships are available.
• Right to vote
• Other types of assistance that the state government may be able to provide.
• Legislation conferring special rights and advantages is immune from being overturned on the grounds that it infringes on any of the Indian Constitution's fundamental rights.

 

Why should Article 35A be repealed:

• However, due to the following reasons, the immunity granted to J&K's statutes is considered discriminatory.
• All special rights are denied to non-permanent residents.

• Discrimination based on gender since even after marrying a woman from outside, a male resident of J&K retains his right to remain a permanent resident. Women, on the other hand, will lose their status to be permanent residents if they marry an outsider. It prevents women who marry outside the country from seeking for jobs or purchasing property.
• As a result, Article 35A is deemed to be in violation of Article 14 of the constitution, which guarantees equality before the law and equal protection under the law, therefore jeopardizing the constitution's fundamental framework.
• As a result, the petition raises concerns about the constitutionality of Article 35A.

 

What are the counter-arguments to repealing Article 35A:

• Article 35A is especially important for the Dogra people of Jammu since it protects them against elite and rich outsiders, primarily from Punjab. Repealing the Article would most likely have an impact on those groups' cultural identity and economic chances.

• Article 35A is necessary to foster J&K's economic growth since it restricts non-permanent residents' ability to conduct business in the state.
• Furthermore, due to heightened rivalry for recruitment, scholarships, and other financial aid, repealing the rule will result in a loss of chances. It will also put more strain on landholdings, farm activity, and so on. This could mean less chances for local skilled and unskilled labor, farmers, and others.
• Furthermore, Article 35A protects the rights and distinct identity of the people of J&K. Arguments that the law should be repealed would simply make it more difficult for them to integrate into society as a whole.
• Apart from the legal barriers outlined previously, there are a number of other grounds in opposition to the repeal of Article 35A, as follows.

 

Why can't Article 35A be repealed:

• The law on the matter is well established, as past Supreme Court benches have upheld the 1954 presidential directive.
• Since Article 370 granted J&K a set of exceptional powers, Article 35A cannot be amended based on a violation of the basic structure. This includes a waiver from the provisions of other states' constitutions.
• Parliament's rights to legislate over the State are limited to three key subjects, namely defense, foreign affairs, and communications, according to the J&K Instrument of Accession (agreed between the erstwhile ruler of Kashmir and the Government of India in 1947).
• Only a presidential order, and only with the consent of the state administration, could Parliament legislate in other areas.
• The President, however, has the authority to declare the clause ineffective under Article 370 of the constitution. However, he can only exercise his authority with the permission of the State's Constituent Assembly.

• Even if the Constitution is amended under Article 368, it will not automatically apply to J&K because it requires a particular order under Article 370. That, too, requires previous assent and confirmation by the J&K government and the State's Constituent Assembly.
• As a result, we cannot justify the legitimacy of Article 35A as long as Article 370 exists.

 

 

Was Article 370 a one-time or permanent measure:

• According to constitutional experts' perspectives, court rulings, and PIL petitions, there are many interpretations of Article 370 as transitory or permanent.

• An NGO challenged the legality of Article 370 in a case filed against the Delhi High Court's April 11, 2017 ruling. According to the petition, the continuation of Article 370's temporary provisions even after the dissolution of the J&K Constituent Assembly, as well as the J&K  Constitution, which has never received the assent of the President of India, Parliament, or the Indian government, "amounts to fraud on the basic structure of our Constitution."
• Furthermore, it claimed that Article 370 was simply a "temporary provision" designed to help restore normalcy and develop democracy in Jammu and Kashmir.
• The Article was added to address Maharaja Hari Singh's concerns that he would not have acceded to India without certain concessions.
• Post-independence, territorial integrity was a top priority for India, hence a particular provision was included in the constitution.
• Article 370 was not intended to be a means for bringing permanent revisions to the Constitution, as Article 35A is. As a result, it is included in our constitution's "Temporary, Transitional, and Special Provisions."
• According to the petition, Article 35 A violates India's "fundamental essence of oneness" by creating a "class within a class of Indian nationals."

• Under Articles 14, 19, and 21 of the Indian Constitution, restricting citizens from other states from gaining jobs or owning property in Jammu and Kashmir is a violation of their fundamental rights.
• Furthermore, Article 370 might be construed as temporary in the sense that the J&K Constituent Assembly could change, abolish, or keep it. However, it chose to keep it.
• Another interpretation was that the admission was just temporary, pending the outcome of a plebiscite.

 

What is the name of the most recent presidential order:

• The Constitution (Application to Jammu and Kashmir) Order, 2019 was promulgated by the President of India on August 5, 2019. It revokes Jammu & Kashmir's special status granted under Articles 370 and 35A of the Constitution.

• The order effectively revokes the special status granted to Jammu and Kashmir under Article 370, which stated that sections of the Indian Constitution that applied to other states did not apply to Jammu and Kashmir (J&K) = The Indian Constitution now applies to the state.

• It will also pave the way for Article 35A to be repealed, allowing Indian residents to buy land and settle permanently in J&K.

• This Order takes effect "immediately" and "supersedes" the 1954 Constitution (Application to Jammu and Kashmir) Order.

 

So, what's next:

• Though the Presidential Order may face legal challenges, Jammu and Kashmir will experience significant political and geographic upheavals as things stand.
• Ladakh and Jammu and Kashmir will be separated into two union territories.
• Ladakh will be without a legislature, whereas Jammu and Kashmir would have a 107-member legislative assembly that will not have the power to adopt laws relating to "public order and the police."
• The government will be formed by the single largest party in the assembly, led by a chief minister, and the assembly will be elected for a five-year term rather than the previous six-year tenure.
• Both Union regions will be governed by a Lieutenant Governor.
• Five of the six Lok Sabha seats currently held by the state of Jammu & Kashmir would stay in the union territory, while one will be allocated to Ladakh.
• The most serious consequences for the state will be the loss of its special status under Article 370.

The following are the most likely important changes:

• There would be no distinct constitution, flag, or anthem for Jammu and Kashmir.
• Citizens of Jammu and Kashmir will not have dual citizenship; instead, they will be Indian citizens only.
• Because the new union territory of Jammu and Kashmir would be subject to the Indian Constitution, its residents will now have access to the document's Fundamental Rights, something they did not enjoy previously.
•  Article 360, which allows for the declaration of a financial emergency, will now be applicable as well.
• All laws passed by Parliament, including the Right to Information Act and the Right to Education Act, would apply in Jammu and Kashmir.
• The Ranbir Penal Code of Jammu and Kashmir will be replaced with the Indian Penal Code.
• Article 35 (A), which derives from the provisions of Article 370, is null and void as a result of the government's modification of Article 370, which diluted Jammu and Kashmir's special status.
• Any Indian citizen from anywhere in the country can now buy property in Jammu and Kashmir, work for the state government, and benefit from government scholarships and other perks.
• A woman's children will not lose their property rights if she marries outside of Jammu and Kashmir.

 

What exactly are the problems with the order:

• The constitutional connection between Jammu & Kashmir and the rest of India is founded on Article 370. It's been defined as a "tunnel" via which the Constitution is applied to the state of Jammu and Kashmir.
• At least 45 times, India has invoked Article 370 to extend the Indian Constitution's provisions to J&K.
• This is the only method India has effectively neutralized the effect of J&K's special status through Presidential Orders.
• Almost the entire Constitution, including most constitutional amendments, was extended to J&K by the 1954 order.

 

What exactly are the problems with the order:

 

• However, repealing the article in its entirety could jeopardize the state's tranquility, which is already a hotbed of strife and extremism.
• It will fundamentally alter the state's relationship with the rest of India.
• It will also pave the way for Article 35A to be repealed, allowing Indian residents to buy land and settle permanently in J&K.

 

Tags : jammu Kashmir, Art 35A