Tuesday, 19 July 2022

LEGAL VIEW ON ABROGATION OF ARTICLE 370

           LEGAL VIEW ON ABROGATION OF ARTICLE 370



INTRODUCTION

The Constitution (Application to Jammu and Kashmir) Order, 2019 was issued by the President of India on August 5, 2019, in the exercise of the powers provided by Clause (1) of Article 370 of the Constitution. The Government of India amended Article 370 as a result of this. The Indian Union's relationship with the state of Jammu and Kashmir has been drastically affected as a result of this action by the Indian government.

BACKGROUND

Article 370 was inserted to the Indian constitution on October 17, 1949, as a 'temporary clause' that exempted Jammu & Kashmir from the Indian constitution, allowing it to establish its own constitution and limiting the Indian Parliament's legislative powers in the state.The J&K Constituent Assembly was disbanded after it drafted the state's constitution under Article 370, which gave it the right to recommend which elements of the Indian Constitution should apply to the state.

Article 35A is derived from Article 370 and was enacted by Presidential Order in 1954 in response to the J&K Constituent Assembly's request.It gives the Jammu and Kashmir legislature the authority to define the state's permanent residents, as well as their particular rights and advantages.

KEY AMENDMENTS

The Presidential Order of 1954 has been replaced by the Constitution (Application to Jammu and Kashmir) Order of 2019.

Following that, Parliament passed the Jammu and Kashmir Reorganisation Bill, 2019, which divides Jammu and Kashmir into two new Union Territories (UTs): Jammu & Kashmir and Ladakh. Five of the six Lok Sabha seats currently held by the state of Jammu and Kashmir are held by the union territory of Jammu and Kashmir, and one by Ladakh.


STATUS OF J&K UNION TERRITORY

The Assembly can pass legislation on any subject in the State and Concurrent lists, save state issues relating to "public order" and "police," according to Section 32 of the J&K 2019 Bill. Article 239 A of the Constitution, which applies to the Union Territories of Puducherry and Delhi, is similar. Article 370's unique status for J&K will be removed. Because the new union territory of Jammu and Kashmir would be governed by the Indian Constitution, its residents will have access to the Indian Constitution's Fundamental Rights. The provisions of Article 360, which can be used to declare a financial emergency, apply. All laws passed by Parliament, including the Right to Information Act and the Right to Education Act, would apply in Jammu and Kashmir.


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THE NEED FOR CHANGES

The Indian constitution was amended to include Article 370, which grants J&K autonomy. However, it did not address the well-being of Kashmiris, who have already lived through two generations of militancy and violence, resulting in a growing divide between Kashmir and the rest of the country.


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CONCLUSION

By establishing a thorough outreach effort to all Kashmiris, the government can minimise the issues arising from the action on Article 370. In this backdrop, Atal Bihari Vajpayee's Kashmiriyat, Insaniyat, Jamhooriyat (Kashmir's inclusive culture, humanitarianism, and democracy) for a Kashmir solution should become a cornerstone of the State's forces of reconciliation.




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