Wednesday, 26 January 2022

Article 370 and 35A Revoked - By Isha

 Introduction

For a clear understanding of Article 379 and Article 35-A, how it was revoked and what will be the impact of this revocation in the near future, let’s discuss a timeline which will help in a clear understanding of this topic.


History (Timeline)

  1. 26th October 1947 – This is the first and the most important date as on this day Instrument of Accession was signed between the Government of India and Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir. 

Instrument of Accession

Jammu and Kashmir surrendered only three subjects to the Union i.e. defence, external affairs and communications. It also earned the assurance that the people of Jammu and Kashmir through their own constituent assembly would draft their own constitution. It was also said that the provisions ( allowing people of Kashmir to draft their own constitution) is an interim arrangement provided by the Constitution of India.

2. 17th October, 1949 – During the drafting of the constitution, on this day Article 370 was incorporated in the Constitution of India.

3. 26th January, 1950 – On this day our constitution came into force. There are two important Article related to Jammu and Kashmir in our constitution.

  • Article 1 which declares Jammu and Kashmir as a state of India.

  • Article 370 which talks about the temporary status of Jammu and Kashmir.

4. 14th May, 1954 – Dr Rajendra Prasad, on this day passed the 1st Presidential Order under Article 370 (1) knowns as the Constitution ( Application to Jammu and Kashmir ) Order, 1954 which incorporated Article 35A in the Constitution.

5. 17th November, 1946 – On this day the Constitution of  Jammu and Kashmir came into force. The Constitution of Jammu and Kashmir declares  Jammu and Kashmir as an integral part of India.

6. 2015 – In this year BJP formed a coalition Government with People’s Democratic party in Jammu and Kashmir. In 2016 Mehboob Mufti became the Chief minister of J&K.

7. June 2018 – During this year BJP broke it’s alliance with People’s Democratic party. Article 92 of the Constitution of Jammu and Kashmir states that if the constitutional machinery of the state is not working properly then Governor’s rule is imposed in the state and therefore from June, 2018 Governor’s rule was imposed.

8. December 2018 – From December 2018, President’s rule was declared in J&K.

9. May 2019 – BJP won the parliamentary Elections. Their Election Manifesto clearly talked about scrapping of Article 35A and 370.


Article 370

  • This Article is part of our constitution since it’s enforcement.

  • It provides special status to the state of Jammu and Kashmir.

  • It restricts State’ legislature power over four heads:

Defence

Communication

External Affairs

Currency

  • If centre has to take certain steps except these four departments, they will require assent of State Legislature of J&K.

  • It also states that it is temporary and a transitional provision.

  • Removal – The removal of this article is also stated in Article 370 only.

The procedure of removal is as follows:

  • The President through a public order can revoke this article but for this it needs the permission of the Constituent Assembly of Jammu and Kashmir.

  • The deadlock of revoking Article 370 was the permission of the Constituent Assembly of Jammu and Kashmir which was already dissolved in the year 1957 because of which it was not possible to remove this Article.

 

Article 35A

The Presidential order was issued under Article 370 (1) (d) of the Constitution which allows the President to make certain exceptions and modifications to the constitution for the benefit of “State Subjects” of J&K. Article 35A was debated for more than five months in Constituent Assembly before it was made part of the Constitution

Text of Article 35A states-

  • Give the rights of defining the term ” Permanent Residents” to the State Legislature.

  • Any person who is a state subject on May 14, 1954 or

  • Who has been living in the state for more than 10 years and has lawfully acquired the immovable property.

  • Conferring of other special privileges to the residents of J&K and restricted to non- residents such as

  • Employment under State Government.

  • Acquisition of immovable property.

  • Settlement in State.

  • Right to Scholarship or any other rights conferred by State Government.

  • Non residents are deprived of right to vote.

  • Minority groups like Dalits were discriminated.


Revocation of Article 370 and 35A


  • On 5th of August 2019 , the President of India while using his powers under Article 370 (1) promulgated the Constitution ( Application to Jammu and Kashmir) Order, 2019.

  • This order superseded the Constitution ( Application to Jammu and Kashmir) Order, 1954 which incorporated Article 35A and The constitution of Jammu and Kashmir.

  • Because of this order The Constitution of Jammu and Kashmir cease to exist.

Resolutions Proposed


After the Presidential order of 2019, Home Minister Amit Shah proposed two resolutions

  • Rendering Article 370 Inoperative

  • Jammu and Kashmir Reorganization Bill 2019

 

Rendering Article 370 Inoperative

  • It was stated by Home Minister Amit Shah that because of this article democracy cannot be fully established in the state.

  • He also argued that owing to this article the development and progress of the State has stopped.

  • As stated earlier that this article can only be revoked with the permission of the Constituent Assembly which case to exist.

  • Therefore through the Constitution ( Application to Jammu and Kashmir) Order 2019 this deadlock was removed.

  • It added clause (4) in Article 367 which is the interpretation of Article 370 and stated that the term “Constituent Assembly” used in the Article 370 (3) is now replaced with “Legislative Assembly”. 

 

Jammu and Kashmir Reorganisation Bill 2019 

This Bill was introduced to bifurcate the State into two separate union territories of Jammu and Kashmir ( with legislature) and Ladakh ( without legislature).

 

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


 Impact of Revocation of Article 379 and Article 35A

Before revocation

  • Dual citizenship

  • Special powers conferred

  • Article 356 and 360 not applicable

  • Separate flag

  • No reservation for minorities

  • Separate Constitution

  • If a woman from J&K marries a non-state person, she would lose property rights

  • People from across the country could not buy land/settle in J&K


 After Revocation

  • Single citizenship

  • No special powers

  • Article 356 and 360 are applicable

  • Tricolor will be the only flag

  • Reservation for minorities

  • Constitution of India would apply.

  • Women can marry state/ non-state subject without losing property rights

  • Prohibition of buying land settling in J&K is removed.

Thus, this is a significant move on the demographic, culture and politics of J&K.


 


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