This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers the story from the Creation of Article 370 and 35A to Abolition and tries to discuss the history, fact and provision of the constitution related to it.
Article 370 and Article 35A were very important provisions for the State of Jammu and Kashmir. Article 35A was a unique provision included in the Indian Constitution that provides Legislature of Jammu and Kashmir complete freedom to make provision for permanent residents of the State. It provides special rights and privileges regarding the acquisition of property, providing job in the public sector, scholarships and other public welfare. Article 370 gave special status to the state of Jammu and Kashmir within India. Article 370 was the most controversial provision in the Constitution of India. Article 370 was a temporary provision. The President of India could declare by public notification to cease Article 370 to exist and can modify this Article also.
Story of creation of Article 370
- When Pakistan did an attack on Jammu and Kashmir in 1947, then Maharaja Hari Singh (King of Jammu and Kashmir) demanded assistance from Indian Government. But, Jammu and Kashmir was not part of India at that time. On this matter, there was an instrument of accession signed on dated 26th October, 1947 between Maharaja Hari Singh and Indian Government. From that day, Jammu and Kashmir become an integral part of India.
- After that, the Indian Government sent armies to Jammu and Kashmir and forced the Pakistan armies to go back.
- Pakistan did not accept Jammu and Kashmir as an integral part of India even after the instrument of accession at that time. They blamed that instrument of accession was not signed in the free consent of Maharaja Hari Singh.
- Then, the Indian Government approached the United Nation to solve that dispute. UN declared Jammu and Kashmir as a disputed area by giving very less value to the instrument of accession.
- In order to solve the dispute of Jammu and Kashmir, the UN suggested a way of Plebiscite in which people of Jammu and Kashmir will vote that where they want to merge (Pakistan or India). But there are some preconditions put by the UN, in order to conduct Plebiscite. Conditions are:
- Pakistan has to remove its army from the area of Jammu and Kashmir.
- India has to reduce the volume of the army in the area of Jammu and Kashmir.
- But, both countries were not ready to remove the army from the area of Jammu and Kashmir at that time, and Plebiscite did not happen.
- A new personality named ‘Sekh Abdullah’ stood in the State of Jammu and Kashmir during that time. Sheikh Abdullah had a party named ‘National Conference’. This Party represents issues and problems of the suppressed and majority of the class of Jammu and Kashmir. During that time, he was emerging as a hero of Jammu and Kashmir.
- There was a meeting held between the Indian Government and Sheikh Abdula named as Delhi Agreement. In this meeting, Instrument of accession was discussed and Article 370 was introduced in the Constitution of India for the incorporation of this instrument of accession.
Article 370 of the Indian Constitution discusses temporary provisions with respect to the state of Jammu and Kashmir. Article 370 broadly covers three areas:
- Laws making power of parliament for the state of Jammu and Kashmir: Generally, Parliament has the power to make laws for all the matters of the central list and the Concurrent list. But Article 370 restricted the law-making power of Parliament for the state of Jammu and Kashmir. According to Article 370, parliament can only make laws for Jammu and Kashmir on the concurrent and central list which was decided while signing the instrument of accession. There were three areas in which parliament can make law for Jammu and Kashmir, i.e. Defence, Communication and External Affairs. These three areas cover 31 matters of central and State list. If Parliament wants to extend its scope beyond 31 matters, then the permission of the Jammu and Kashmir government is required. Generally, When parliament makes any laws such as RTI, GST etc, it applies to every state directly except Jammu and Kashmir. But in case of Jammu and Kashmir, any laws passed by parliament should be ratified by state assembly of Jammu and Kashmir. If State assembly ratifies that law, then only it will apply to the State of Jammu and Kashmir.
- Provisions of the Indian Constitution which are applicable in the state of Jammu and Kashmir: Article 1 and Article 370 of the Indian Constitution will be applicable in the State of Jammu and Kashmir. Along with these two articles of the Indian constitution, provisions of the constitution which was specified by the order of President in 1954 will be applicable in State of Jammu and Kashmir. This order of President is modified from time to time. Remaining parts and provisions of the Constitution of India will not be applicable to the State of Jammu and Kashmir.
- Procedure to cease Article 370 of the Indian Constitution: When does Article 370 cease to exist? Answer to this question is also given in Article 370 of the Indian Constitution. If Constituent Assembly of Jammu & Kashmir agrees that Article 370 should be ceased and President of India declares the same by the public notification, then only Article 370 will cease to exist. But Constituent Assembly of Jammu and Kashmir was dissolved in 1957.
Story of creation of Article 35A
- During the Treaty of Amritsar in 1846, the British Government has given Jammu and Kashmir to Maharaj Gulab Singh and Jammu and Kashmir was treated as Princely state. Legal provisions were made between 1912 to 1932 for Jammu and Kashmir.
- After the adoption of Article 370 in the Indian Constitution, the citizenship of India was also extended to people of Jammu and Kashmir, but leaders and constituent assembly of Jammu and Kashmir wanted that existing laws and state subject of Jammu and Kashmir should be afforded different treatment.
- For fulfilment of the desire of leaders and constituent assembly of Jammu and Kashmir, Dr Rajendra Prasad has introduced Article 35A in the Indian Constitution with the help of presidential order, 1954 by Delhi Agreement.
Article 35A defines the Rights of the Permanent Residents of Jammu and Kashmir. These residents are then eligible for special rights and privileges which the legislature can provide. According to this Article:
- Definition of a permanent resident of Jammu and Kashmir will not change even after any such provision is given in Indian Constitution regarding this or any existing law in force in the State of Jammu and Kashmir or any law enacted by the legislature of the State.
- Nothing in Article 35A will be void even after other citizens of India suffers a violation of their rights in respect of employment in the State of Jammu and Kashmir, or acquisition of immovable property of the state, or settlement in the state or right to scholarships and such other forms of aid as the State Government may provide.
Story of the Abolition of Article 370 and 35A
You must have heard about the fact via. TV, Newspaper or other social media that the Government has abolished Article 370 and Article 35A of the Indian Constitution. But, have you ever thought that by what procedure and by which bill, this abolition is made? Name of the bill was “The Jammu and Kashmir Reorganisation Bill, 2019” which was introduced by the minister of home affairs Amit Shah in Rajya Sabha on 5th August 2019. The bill was passed in Rajya Sabha on the same day and passed by Lok Sabha on 6th August 2019. Assent of President was also given to this bill on dated 9th August 2019. “The Jammu and Kashmir Reorganisation Bill 2019” was that bill by which passes results abolition of Article 370 and Article 35A of the Indian Constitution.
The Jammu and Kashmir Reorganisation Act, 2019
The Jammu and Kashmir Reorganisation Act, 2019 is an act of the Indian Parliament. It was introduced in Rajya Sabha on dated 5th August 2019 by Ministry of Home affairs. The main features of this Act are:
- Reorganisation of the State of Jammu and Kashmir: This Act gives provision for reorganisation of Jammu and Kashmir into two Union Territory, i.e., Union territory of Jammu and Kashmir (consists of Kargil and Leh districts) and Union territory of Ladakh (remaining territories of the state of Jammu and Kashmir except for Kargil and Leh districts).
- Lieutenant Governor: These two Union territories will be administered by the President, through a Lieutenant Governor (appointed by the President).
- Legislative Assembly: This Act provides the concept of new Legislative Assembly for the UT of Jammu and Kashmir and says about the various characters of the same.
- Total number of seats- 107 seats.
- 24 seats out of 107 seats will remain vacant as their areas are occupied by Pakistan.
- Seats of Assembly will be reserved for SCs and STs according to their population in UT.
- Lieutenant Governor can nominate any two members for the representation of women to Legislative Assembly if they are not sufficiently represented.
- The Assembly term will be of five years and it is mandatory for Lieutenant Governor to summon the assembly at least once in six months.
- The Legislative Assembly can makes laws for any part of UT of Jammu and Kashmir which is related to:
- Matters mentioned in State list of the constitution, except “Police and Public Order”.
- Matters which are in Concurrent list applicable to UT.
- Parliament has the power to make laws for Union Territory of Jammu and Kashmir.
- Council of Ministers: The UT of Jammu and Kashmir has Council of Ministers of not more than 10% of members in the Legislative Assembly. The COM will advise Lieutenant Governor in the matter of making laws. The Chief Minister has to communicate each and every decision of COM to Lieutenant Governor.
- High Court: There will be only one High Court for both Union Territory. UT of Jammu and Kashmir will have an Advocate General who will give legal advice to the Government of UT.
- Legislative Council: The Legislative Council of the State of Jammu and Kashmir will be abolished and all bills which are pending in Legislative Council will lapse.
- Advisory Committees: The Central Government will appoint Advisory Committees for various purposes, such as-
- Distribution of assets and liabilities of the state into two union territories.
- Issue of generation and supply of electricity and water.
- Issue of State Financial Corporation.
- The extent of laws: 106 central laws of the Schedule lists will be applicable in both UTs from dated which is notified by the central government. These include:
- The Aadhaar Act 2016;
- The Indian Penal Code 1860;
- Right to Education Act 2009; etc.
From the Creation of Article 370 and 35A to Abolition
In this composition, the complete story of issues is given from creation to abolition. Summary of the above story follows:
- In 1947, the Instrument of Accession was made.
- In 1949, Article 370 is taken into consideration that it will be in the constitution of India.
- In 1950, the Constitution of India came into force.
- In 1954, Article 35A came to exist by the 1st Presidential order.
- In 1956, the Constitution of Jammu and Kashmir came in force.
- In 1990, the Armed Forces Special Powers Act imposed.
- In 2018, Presidential rule was declared in State of Jammu and Kashmir.
- In 2019, Abolition of Article 370 and Article 35A.
Views of people of Jammu and Kashmir who were against this Bill
There were some people who were opposing The Jammu and Kashmir Reorganisation Bill 2019 on the basis of their different views as follows:
- The recent CM of Jammu and Kashmir, Mehbooba Mufti said it the “blackest day of democracy in India”. She said that the Indian Parliament will snatch away everything from the state of Jammu and Kashmir.
- Former CM Omar Abdullah said the Government’s move as “unilateral and shocking”. According to him, the decision of the Government is a betrayal of the trust of people of Jammu and Kashmir.
- According to Asgar Ali Karbalai (former Chief Executive Councillor of Kargil’s Hill Development Council), it is undemocratic to divide the state on the basis of “religion, language or region”.
Views of people of Jammu and Kashmir who were in support of this Bill
There were some people who were supporting The Jammu and Kashmir Reorganisation Bill 2019 on the basis of their different views as follows:
- Jamyang Tsering Namgyal (a member of Lok Sabha for Ladakh constituency) support this Bill and hoping the move of Government will encourage jobs and development in their areas.
- Leaders of the Kashmiri Hindu community (who were displaced from the Kashmiri Valley) were in support of this Bill and hoping for the justice to their communities.
The issues related to Article 370 and Article 35A were very sensitive and complex issues which were raised in India. It was a Historical decision that Indian Government cancelled the special status which was granted under Article 370 to Jammu and Kashmir, which has been a matter of dispute among India, Pakistan and China since 1947.
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