Topic: Abrogation of Article 370

01 Aug 2023 0 mins Download PDF

Why in news?

The Supreme Court is set to test the constitutionality of repeal of Article 340 in 2018.

What is Article 370?

1. Jammu & Kashmir (J&K), a princely state during British rule, wanted to remain as an independent state post-independence.
2. But, Raja Hari Singh, the ruler of J&K had to sign the Instrument of Accession with India following Pakistan's invasion against it on Oct 26, 1947.
3. A Special status for J&K was negotiated by its first Prime minister Sheikh Abdulla in the constituent assembly.
4. Article 370 was introduced as a temporary provision that conferred special status to J&K
   • Only those aspects of the Indian Constitution agreed upon in the Instrument of Accession shall be applicable to J&K.
   • Laws can be made applicable to J&K only by the President with the consultation of the State government in the matters of Defence, Foreign affairs and communication. Thereby, it restricted the power of the Parliament.
   • For application of other articles of the constitution presidential order with concurrence of the state government is mandatory.
   • Using the special provisions a constituent assembly drafted and adopted the Constitution exclusively for J&K.
   • Article 35A
   • Was introduced under article 370 through a presidential order in 1954
   •  It defined the states' Permanent residents, their special rights and privileges.
   • Permanent residents were defined as people who were a state subject as of May 14, 1954 or a resident of the state for 10 years any time since.
   • Permanent residents alone could buy and own property in the state.
5. Abrogation of Article 370  - 2 Presidential Orders
   • a. First Presidential order - To neutralize the Fail-safe mechanism inherent in Article 370(3) that specifies mandatory president's concurrence with Constituent assembly of the state to amend/ revoke a provision. The order made following changes,
     • New Interpretation clause- The Governor of J&K shall deem to act on behalf the elected representatives of the state for time being. At that time, the state was under President's rule.
     • 'Constituent assembly of the state' was substituted with the expression 'Legislative assembly of the state'.
   • b. Second Presidential order
     • Made the entire constitution of India applicable to J&K by taking Governor's concurrence.
     • The order superseded the Constitution (Application to Jammu & Kashmir) Order, 1954 which defined the constitutional position between J&K with Indian Union
   • C. The state was broken into two Union Territories (UTs) of J&K and Ladakh with the former having a legislative assembly.
     • By passing J&K Reorganisation Act, 2019
     • Now Parliament became their legislatives due to their UT Tag.
     • Later, Delimitation exercise was carried out by making the Delimitation Act, 2022 applicable to J&K

On what grounds the repeal of Art 370 has been challenged in the court?

• Making permanent changes to the state under the President's rule is against the constitutional ethos.
• Taking Governor's consent to nullify Art 370 is akin to Centre taking its own consent. It is against the Federal spirit of the Constitution.
• Art 370 can be modified only on recommendation of J&K Constituent assembly and it is not subject to amendment powers of the constitution.

Downside of the abrogation:

• Huge trust deficit as governmental policies are looked upon with suspicion as hidden agenda.
  • For instance, Anti-encroachment drive, policy allowing outsiders to buy land in J&K, the delimitation exercise is seen as an attempt to change the demography of J&K.

The upside of the move:

• Militancy has been on decline, with only 4 encounters in Kashmir in this year so far.
• Tourism is in the boom phase: All time high of 2.3million visitors in 2022
• Integrated development through Industries- New Industrial policy post 370 abrogation has drawn investment worth Rs.60000 crore, fourfold compared to the last 70 years in J&K.