Article 370 and Article 35A of Indian Constitution Case

On August 5th and 6th, 2019, over the course of two days, the Union government repealed Article 370, revoking Jammu and Kashmir’s special status. Article 370 of the Indian constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent and part of the larger region of Kashmir which has been the subject of a Dispute between India and Pakistan since 1947. From 17 November 1952 to 31 October 2019, Jammu and Kashmir was governed by India as a state, and Article 370 granted it the authority to establish a separate constitution, a state flag, and internal administrative autonomy.

What is Article 370?

Article 370 of the Constitution of India was a temporary provision that provided special status to the State of Jammu and Kashmir. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir had the right to modify, delete or retain it, and it was considered to be temporary only till a plebiscite was held to ascertain the public opinion.

The autonomy of the State has been given by Article 370 of the Constitution. The temporary provision of this Article is derived from Part XXI of the Constitution under the title “Temporary, Transitional and Special provisions” which grants special status to the State of Jammu and Kashmir. This article was inserted in the Indian Constitution on October 17th 1949.

History Behind Article 370

After Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, signed the Instrument of Accession on October 26, 1947, the state became a part of the Dominion of India. Article 370 of the Indian Constitution states that J&K is covered only by Articles 1 and 370.

The President, in consultation with the state government, was to make the decision about the application of Other Articles. The Constitution Order of 1950 outlined the themes on which the Union Parliament would have the authority to adopt legislation for Jammu & Kashmir in accordance with the Instrument of Accession; 38 topics from the Union List were included.

The Instrument of Accession, which Maharaja Hari Singh, the former monarch of J&K, signed in 1947, gave rise to Article 370. Jammu and Kashmir were exempted from the Indian constitution by Article 370 of the Indian constitution, which was enacted on October 17, 1949, as a “temporary clause,” allowing the state to create its own constitution and restricting the legislative authority of the Indian Parliament in the territory.

In the draught constitution, it was proposed as Article 306A by Sir Narasimha Gopalaswami Ayyangar. The Jammu and Kashmir Constituent Assembly was dissolved after creating the state constitution, and on January 25, 1957, it did so without endorsing either the abrogation or revision of Article 370, leaving the clause’s status in doubt.

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Article 35A and Article 370 of Indian Constitution

Article 35A, which derives from Article 370, is distinctive in that it only appears in Appendix I and not in the main body of the Constitution. Until they were removed in August 2019, both of these articles granted the state of J&K and its residents exceptional status and rights.

Sheikh Abdullah was chosen as the article’s drafter by Jawahar Lal Nehru and Maharaja Hari Singh, the J&K state’s then-prime minister. The Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced by Union Home Minister Amit Shah and published in the Official Gazette of India on August 5, 2019. The ruling declared that the state of J&K must abide by all the articles of the Indian Constitution, which resulted in the suspension of J&K’s own constitution. Additionally, the state’s Ranbir Penal Code, which was repealed by Presidential decree in 2019, was replaced by the Indian Penal Code (IPC), 1860, which also went into effect in the state.

The amendment was purchased by the government under Clause 3 of Article 370, not the conventional amending provision provided in Article 368 of the constitution. Hence, avoiding the amending process.

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Article 35 A

Permanent residents of Jammu and Kashmir were given exceptional privileges and rights under Article 35 A, including the ability to purchase property there, preference in hiring for positions in the public sector, and other benefits. According to this article, only citizens of Jammu and Kashmir who dwell there year-round are eligible to purchase real estate there and cast ballots in local elections. Article 35A was repealed by the Jammu and Kashmir Reorganization Act of 2019.

The Central Government will not require permission from the state’s government to implement laws once Article 370 has been successfully abrogated. After Article 370 of the Indian Constitution was repealed, Article 35 A lost all of its effects. Simply put, there won’t be any distinction between J&K’s permanent residents and the rest of the state’s citizens.

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Removal of Article 370

In accordance with the authority afforded by Clause (1) of Article 370 of the Indian Constitution, the President of India issued the Constitution (Implementation to Jammu and Kashmir) Order, 2019 on August 5, 2019, repealing the special status previously accorded to Jammu and Kashmir.

Jammu and Kashmir no longer has its own constitution, flag, or anthem, and its population no longer has dual citizenship as a result of the repeal of Article 370. Jammu and Kashmir now abide by all legislative amendments made by the parliament, including the Right to Information Act and the Right to Education Act.

Now that Article 370 has been abolished, Jammu & Kashmir is fully covered by the Indian Constitution and all 890 Central legislation. Jammu and Kashmir was seen as being a part of India in both letter and spirit after Article 370 was repealed. The Indian Constitution’s Article 370 was viewed as a temporary and ineffective provision that needed to be repealed.

Advantages of Article 370

1. Better relationship with Indians and Kashmir Population

Article 370’s elimination helps the people of Kashmir since it allows them to join the rest of India. Both they and Indians have the right to be a part of Kashmir. They are able to apply for scholarships for school. There are government employment available for them in Kashmir.

2. One Nation and One Flag

India as a whole is now gathered. There is no distinct constitution for Indians and Kashmiris. Everyone will adhere to the motto “one nation, one constitution”.

3. Boost to Economic Development

After Article 370 is repealed, Kashmiris can work in the Indians’ newly established firms and make good money. Creating more jobs will inevitably lower crime. The Kashmiris will also benefit economically if they sell their lands to the Indians on a leasing basis.

4. Private Investors can Invest

Private business owners can establish factories in Kashmir, creating jobs for Kashmiris and Indians. The fact that 40% of Kashmiris lack jobs is the main cause of the rise in crime in the valley. Antisocial acts will decline as private investors begin to invest in Kashmir. Land prices will rise, enabling Kashmiris to make significant gains.

5. Right to Education and Information

With the repeal of Article 370, all Kashmiris now have the right to an education. Kashmiris now have the right to know everything because the nation would be under one flag and one nation. The law now grants Kashmiris the right to receive a quality education from institutions located in the state. There is a 100% possibility that new educational institutions would open in the valley as a result of investors’ investments in Kashmir; this will educate children, particularly girls.

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Disadvantages of Article 370

1. Only a small portion of Kashmir believes it to be unlawful. This decision has been equated to fascism

According to Kashmiris, who categorically deny knowing that the Indian government intended to repeal Article 370. Separately, this was withdrawn without the J&K government’s consent and without warning. On August 5th, 2019, the internet was shut off, hundreds of troops were summoned, landlines were disconnected, and even Kashmiri lawmakers were placed under house arrest. The Kashmiris were abruptly forced to accept this decision after being locked inside their homes. This choice was made after the State Assembly of Jammu and Kashmir was disbanded and President’s rule was implemented in Kashmir.

2. Many proclaim it as unconstitutional; it was comparable to a dictatorship

The people of Kashmir believe that their demands are being ignored. The imposition of Article 370 on Kashmir was unlawful, and thus amounts to deceiving the Kashmiris. The Indian leaders are not even paying attention to the democratically elected J&K lawmakers. 370 were eliminated from the constitution during a time when there was no state assembly. It is considered cheating because the public was informed that 10,000 troops had been sent to the Kashmir Valley because there was a possibility of a terrorist attack.

3. J&K no longer has the status of a state; instead, it is now considered to be union territory

Jammu and Kashmir previously had a special status that was lowered as a result of Article 370. However, it has now descended to a status below normal and has been designated a Jammu and Kashmir union territory. Union territories have significantly lower levels of democracy than regular states, and as a result, the federal government will now have much more power over the territory.

4. Not all choices can be made by the elected state government

The Kashmiris would be able to choose the state administration after article 370, but their rights will not be the same as they are now. In J&K, democracy will now suffer. The decision is not being fully accepted by the people of Kashmir, which will eventually lead to more political and social tensions. This choice won’t be implemented unless the Kashmiri population desires to assimilate with Indians.

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