Article 370 was incorporated in the
Constitution of India as a temporary provision which granted
state of Jammu and Kashmir a special status in a sense that all the
provisions of Constitution of India were not applicable to J&K until State
gives its concurrence and the state of Jammu and Kashmir had its own
constitution and flag. The laws created by the Central Government were not
applicable to Jammu and Kashmir until passed by the state government.
Presidential Order of 1954 listed down which parts of Constitution of
India were applicable to the State of Jammu and Kashmir. Article 35A provided for special
rights to the natives of the state of Jammu and Kashmir through which
outsiders were not allowed to buy property in the state and women marrying
non-Kashmiri loses her right on the property in the state.
What is Article-370? How it was introduced in Indian Constitution?
Article 370 was introduced in the Constitution of India in Part XXI (Temporary, Transitional and Special Provisions) as a temporary provision which provided a special status to Jammu and Kashmir.
The Presidential Order of 1954 listed down which parts of Constitution of India were applicable to the State of Jammu and Kashmir.
What is Article-35A?
Article 35A granted special rights to the natives of the state of Jammu and Kashmir. It was added through a Constitution order [Constitution (Application to Jammu and Kashmir) Order, 1954] issued by the President of India under Article-370.
The special rights given to the natives of Jammu and Kashmir included:
1) No one from outside the state of Jammu and Kashmir can buy property in the state.
2) If a woman gets married to a non-Kashmiri, she loses all her rights on the property in the state.
The history was written on 5th August, 2019 when the Union Minister for
Home Affairs (Amit Shah) introduced two bills and two resolutions regarding
Jammu & Kashmir (J&K) which were as follows:
1) Constitution (Application to Jammu & Kashmir) Order, 2019
{Ref. Article 370(1) of Constitution of India} – issued by President of India
to supersede the 1954 order related to Article 370.
2) Resolution for Repeal of Article 370 of the Constitution of India
{Ref. Article 370 (3)}
3) Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution
of India}
The J&K reorganization bill bifurcates the present state of Jammu and Kashmir into two Union Territories - Jammu and Kashmir and Ladakh.
i) Jammu & Kashmir is made a Union territory with a Legislative Assembly
Note:
- PoK and Aksai Chin are
an inalienable part of Jammu and Kashmir and the seats are still part of
the legislature.
- J&K would have a
Legislative Assembly with elected representatives and will not be
administered by the Centre
ii) Makes Ladakh a Union Territory without a
Legislative Assembly.
- a long standing demand of
the people of Ladakh has been fulfilled.
4) Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019
The reservation bill provides for 10% quota to economically weaker sections of the society in Jammu and Kashmir in jobs and educational institutions.
Once the resolution is passed in both houses, this separate bill for reservation for economically backward classes would not be required as the provision will get automatically applied to J&K, as in rest of India.
How Article-370 has been repealed?
As per the provisions of Article 370(3), the President of India has the powers to amend or repeal the Article-370 by issuing a notification, based on a recommendation of Constituent Assembly of Jammu & Kashmir (State Legislature).
At present, since President’s rule is in force in the state of Jammu and Kashmir, the implementation of Article-370 would cease to exist when President of India issues the notification in this regard, on the recommendation of the Parliament.
Hence, with regards to powers granted under clause (3) of Article 370 to the President of India, on the recommendations of Parliament, President has issued an order which supersedes Presidential Order of 1954 and declares that "as from 6th August, 2019, all clauses of the said Article 370 shall cease to be operative."
With the repeal of Article-370, all the provisions of Constitution of India will get applicable to the State of Jammu and Kashmir in both letter and spirit in the same manner as it is applicable to the other States and Union Territories of India.
Does Parliament have the power to repeal Article-370?
In Article-1, it has been clearly stated that state of Jammu & Kashmir is an integral and an inalienable part of India.
The Parliament is the highest body to make laws in India and it can
bring resolutions for any state of India including Jammu and Kashmir. Thus, no
question can be raised to this power of the Parliament.
How Article 370 provides greater autonomy to Jammu and Kashmir? How is state of Jammu and Kashmir different from other Indian states?
1) The State of Jammu and Kashmir has its own Constitution.
2) The State of Jammu and Kashmir has its own Flag.
3) All the provisions of Indian Constitution are not applicable to the State of Jammu and Kashmir.
4) The laws passed by the Parliament will be applicable to J&K only if the State government agrees to it.
5) The Directive Principles of State Policy do not apply in the State of Jammu & Kashmir
6) The Emergency on the grounds of internal disturbances can be declared in the State of Jammu & Kashmir only if State government gives its concurrence.
7) Financial emergency cannot be imposed by the Union
government in the State of Jammu & Kashmir
8) The Amendments to the Indian Constitution under Article 368 can only be applied in Jammu & Kashmir if the State government agrees to it.
9) 73rd and 74th Amendments to the Constitution could not be applied to J&K due to article 370.
Why it was necessary to repeal Article-370?
1) The laws of Union of India could not be applied to the Jammu and Kashmir such as:
- Prevention of Child Marriage
Act
- Right to Education,
- Land Accusation Act,
- Multiple Disability
Act,
- Senior Citizens act,
- Delimitation act,
- Whistle Blower Protection
act,
- Laws enacted for empowerment
of tribals,
- National Commission for
Minorities,
- National Council for Teacher
Education
2) Article 370 has led to discrimination against the minorities including Buddhists, Sikhs and others.
3) Article-370 is responsible for the rise of corruption in the state and it has sowed the seeds of separatism and terrorism in J&K.
4) It has not only prevented the development in the State of Jammu and Kashmir but also facilitated terrorism to grow there. The repealing of Article 370 will help to bring the people of J&K to the mainstream.
5) The refugees who came from Pakistan after partition did not get citizenship till now and they cannot become councillors in the state.
6) Article 370 prevents people from outside the state to do business there.
7) There is no economic competition which has prevented development of the State.
8) Land prices are too low because no one can buy land there.
9) No private industry was allowed to be established there which affected not only development but also tourism.
10) The controlled corruption in the state has prevented businesses from investing in the state.
11) Though a lot of funds have been provided by the Centre, yet nothing seems to percolate down to the people. There are no educational and health facilities in the state.
12) Article 370 prevented professionals from outside the state to settle down in the state and hence no one wanted to go there.
13) The daughters of the state marrying outside the state lose their rights to property.
14) SC and ST people have been discriminated against and have been
deprived of reservation to political offices.
J&K would become a true part of India in letter and spirit once
article 370 is repealed.
What changes have taken place after the repeal of Article-370?
1) Jammu Kashmir will no longer have an autonomous status - all the
provisions of Constitution of India will be equally applicable to J&K like
any other state and UT of India.
2) The present state of Jammu Kashmir will be bifurcated into two union
territories:
a) Jammu and Kashmir - will be a Union
Territory with a Legislative Assembly, governed by Lieutenant
Governor
b) Ladakh - will be a Union Territory without
a Legislative Assembly
3) Property:
- Anyone will be able to buy
property in Jammu and Kashmir,
- If a girl marries a
non-Kashmiri, she does not loose her rights to property.
4) Jobs:
- Anyone will be able to apply
for government jobs even people from outside the state
5) Flag: No separate flag
6) Separate Constitution: No separate constitution, now
Indian constitution will be applicable in the state
7) Indian Penal Code: Instead of RPC, now Indian Penal
Code will be applicable
8) 73rd and 74th Amendment Act
- The local representatives
would have a voice in the hill councils.
- The governments would be
democratically elected and would run the local government and
administration in J&K.
9) Right to Education
- Each child in the age group
to 6 to 14 years would get right of education
10) Health
- Each patient can get free
health care under Ayushman Bharat.
- Private hospitals can be
established in the State.
11) Private Investments
- It opens the doors for
private investment in J&K which would in turn increase the potential
for development there.
- Increased investments would
lead to increased job creation and will improve
socio-economic infrastructure in the state.
- Opening of buying of lands
would bring in investments from private individuals and multinational
companies and give a boost to the local economy.
Note:
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