Article 370 and Article 35A repealed

The Government has announced recently about the decision to repeal Article 370 and Article 35A of the Indian Constitution. The government also announced the reorganisation of the state which will now have 2 union territories – Jammu & Kashmir and Ladakh.

WHAT IS 35A?

Article 35A allows the Jammu and Kashmir legislature to define permanent residents of the state. It was inserted through the Constitution (Application to Jammu and Kashmir) Order, 1954, which was issued by President Rajendra Prasad under Article 370, on the the advice of the Nehru-led Union Government.)

For detailed explanation refer Controversy on Article 35A 

Government has moved a resolution to revoke Article 370 in Jammu and Kashmir except the first clause 370 (1).

What is Article 370?

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”, the state of Jammu & Kashmir has been accorded special status under Article 370. 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 chief minister.

History of Article 370

The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted ‘iron clad autonomy’ for the state, which Centre didn’t comply with.

Provisions of Article 370

According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.

Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

The validity of Article 370 has been questioned time and again. Can it be debated on the floor of the Parliament? Well, yes. Experts have said that it is temporary in nature and avenues to change it are yet to be explored by lawmakers. This Article is not barred from a debate on the floor of the Parliament. “Article 370 under the Constitution has been ascribed as a temporary provision and not a special provision. There are provisions in the Constitution – temporary, transitional and special. Temporary is the weakest. The question is – how can be it ended and when shall be ended.

However, legal experts point out that removing Article 370 comes with riders. There are practical problems in removing Article 370. There are a number of presidential orders issued under Article 370 extending a number of statutes and other provisions applicable in other parts of the country to J & K. If 370 go without any alternative, it will create practical difficulties.