ABROGATION OF ARTICLE 370 – A KEY LANDMARK OF INDIAN CONSTITUTION

ARTICLE 370 and ARTICLE 35A in The Constitution of India 1950

ARTICLE – 370 :
” Temporary provisions with respect to the State of Jammu and Kashmir”.
Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of the chief minister.
ARTICLE – 35A :
“Empowers the J&K legislature to define a ‘permanent resident’ of the state”
Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique, in the sense that it does not appear in the main body of the Constitution — Article 35A empowers the J&K legislature to define a “permanent resident” of the state, and to provide special rights and privileges to those permanent residents.
The Supreme Court examined whether it is unconstitutional or violates the basic structure of the Constitution. Article 35A was not passed as per the amending process given in Article 368 but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order.
Article 370 is not only part of the Constitution but also part of federalism, which is the basic structure.
SIGNIFICANCE OF ARTICLE 370 :
The article allowed the state a certain amount of autonomy – its own constitution, a separate flag, and the freedom to make laws. Foreign affairs, defense and communications remained the preserve of the central government.
As a result, Jammu and Kashmir could make its own rules relating to permanent residency, ownership of property and fundamental rights. It could also bar Indians from outside the state from purchasing property or settling there and special law on Kashmir is controversial.

WHAT HAPPENED?
In the first few days of August 2019, there were signs of something afoot in Kashmir.
Instead of scrapping Article 370, the government used the power given by the same Article to the President to make the provision ineffective.
The scrapping of Article 370 would, otherwise, require a constitutional amendment under Article 368. But by invoking Article 370(3), the government has cleverly bypassed the amendment route.
Tens of thousands of additional Indian troops were deployed, a major Hindu pilgrimage was canceled, schools and colleges were shut, tourists were ordered to leave, telephone and internet services were suspended, and regional political leaders were placed under house arrest.
But most of the speculation was that Article 35A of the Indian constitution, which gave some special privileges to the people of the state, would be scrapped.
The government then stunned everyone by saying it was revoking nearly all of Article 370, which 35A is part of and which has been the basis of Kashmir’s complex relationship with India for some 70 years.
After Kashmir’s special status is gone, people from anywhere in India be able to buy a property and permanently settle in the state. This has fueled fear in the mind of Kashmiris — they think it would lead to the state’s demographic transformation from majority Muslim to majority Hindu.
Under the notification, the Ladakh region is also being given the status of a Union Territory without legislature. “The Ladakh division has a large area but is sparsely populated with very difficult terrain. There has been a long-pending demand of people of Ladakh to give it a Union Territory status to enable them to realize their aspiration”.
Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is a categorical acknowledgment about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover, people of the state are referred to as ‘permanent residents’ not ‘citizens.” Article 370 is not an issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather than integration.

MANIFESTO STEP:
Prime Minister Narendra Modi and Bharatiya Janata Party had long opposed Article 370 and revoking it was in the party’s 2019 election manifesto. They argued it needed to be scrapped to integrate Kashmir and put it on the same footing as the rest of India. After returning to power with a massive mandate in the April-May general election.
Kashmir will no longer have a separate constitution but will have to abide by the Indian constitution much like any other state.
All Indian laws will be automatically applicable to Kashmiris, and people from outside the state will be able to buy property there, this will bring development to the region.
The government is also moving to break up the state into two smaller, federally-administered territories. One region will combine Muslim-majority Kashmir and Hindu-majority Jammu. The other is Buddhist-majority Ladakh, which is culturally and historically close to Tibet. Amit Shah moved a resolution in the Rajya Sabha to make Article 370 inoperative in J&K.
Ultimately, it struck down the provision for quotas in promotions on the ground that clause 4A of Article 16, introduced by the Constitution (77th) Amendment to protect reservation in promotions, was not applicable to J&K. This is because there is no Presidential Order making the new clause applicable to the State. One of the features of Article 370 is that a Constitution amendment becomes applicable to J&K only after the President issues an order. Presidential Order was issued using of Article 370(3).
CRITICS:
One constitutional expert, Subhash Kashyap, told news agency ANI that the order was “constitutionally sound” and that “no legal and constitutional fault can be found in it”.
Another constitutional expert, AG Noorani, told BBC Hindi it was “an illegal decision, akin to committing fraud” that could be challenged in the Supreme Court.
The Supreme Court on March 2nd, 2020 refused to refer the petitions challenging the abrogation of Article 370 to a larger bench. NGO People’s Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association and an intervenor had challenged the constitutional validity of the Centre’s decision of August 5 last year and sought to refer the matter to a larger bench, of either seven or nine judges.
The top court accepted the Centre’s arguments in the limited aspect of reference and held that there is no conflict in the earlier Supreme Court judgments of Sampat Prakash and Prem Nath Kaul.
A five-judge constitution bench headed by Justice N V Ramana had on January 23 reserved its order on this issue.
TERRORISM IN BORDER:
“Keeping in view the prevailing internal security situation, fueled by cross-border terrorism in the existing state of Jammu & Kashmir, a separate Union Territory is being created with the legislature”.
• The Lashkar-e-Taiba (LeT) carried out an attack on pilgrims in Anantnag in 2017, killing seven Amarnath yatris, including six women, and injuring 19. The terrorists attacked a bus ferrying 58 passengers bound for the Amarnath hill shrine from Baltal to Mir Bazar in Kashmir. However, the majority of the pilgrims resumed their yatra and made their way to the shrine in large numbers.
• Five pilgrims, all belonging to Rajasthan, were injured in a grenade attack by terrorists in 2006. According to media reports, a bus carrying 40 passengers was targeted while returning to Srinagar from Baltal base camp. The Srinagar-Baltal road, which is the main route that pilgrims take, was closed following the attack. However, no outfit claimed responsibility for the attack. And so many attacks recently in 2019 (Pulwama attack) Jammu-Srinagar National Highway was attacked by a vehicle-borne suicide bomber at Lethpora in the Pulwama district.

1. Kashmir is a Himalayan region that both India and Pakistan (Pak say is fully theirs).
The area was once a princely state called Jammu and Kashmir, but it joined India in 1947 soon after the sub-continent was divided up at the end of British rule.

2. J&K acceded to the Dominion of India after the Instrument of Accession was signed by        Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, on 26 October 1947.

3. India and Pakistan subsequently went to war over it and each came to control different parts of the territory with a ceasefire line agreed.

4. There has been violence in the Indian-administered side – the state of Jammu and          Kashmir – for 30 years due to a separatist insurgency against Indian rule.

5. On the 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu and Kashmir) Presidential Order, 2019.

6. According to the Presidential Order, provisions of the Indian Constitution are now
applicable in the State,
• A separate Bill – the Jammu and Kashmir Reorganisation Bill 2019 – 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 the reservation for Economically Weaker Sections (EWS) in educational institutions and government jobs in Jammu and Kashmir.

7. Ladakh will not have a legislative assembly, while Jammu and Kashmir have a                legislative assembly with 107 members, this assembly has no power to make law relating to public order and the police. A Lieutenant Governor will govern both Union territories.

8. Of the six Lok Sabha seats currently with the state of Jammu and Kashmir, five will remain with the union territory of Jammu and Kashmir, while one will go to Ladakh. However, the biggest fallout for the state will stem from the abolition of its special status under Article 370.

9. Jammu and Kashmir will no longer have a separate constitution, flag, or anthem.
The citizens of Jammu and Kashmir will not have dual citizenship-they will be citizens of India alone.

10. Article 360, which can be used to declare a Financial Emergency, will now also be applicable.

11. All laws passed by Parliament will be applicable in Jammu and Kashmir, including the          Right to Information Act and the Right to Education Act.

12. The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir. The code was introduced during the reign of the Dogra dynasty with Ranbir Singh as its ruler. Indian Penal Code was not applicable hereunder Article 370 of the Indian constitution. (Before repealing Article 370)

Thus, the move is bound to have a significant impact on the demography, culture, and politics of Jammu & Kashmir and Ladakh.

READ MORE INFO:
https://www.indiatoday.in/india/story/india-maps-new-ut-ladakh-jammu-kashmir-boundaries-photos-1615173-2019-11-02

https://www.thehindu.com/news/national/centre-releases

https:/www.iasexpress.net/article-35a

https://www.hindustantimes.com/india-news/no-need-for-larger-bench-rules-supreme-court-on-plea-on-scrapping-article-370/story-OgFNM16BpwyvcQh5QswT7I.html