Article 370 Abrogation

Article 370 Abrogation

On 5th August 2019, thousands of security personnel poured in the disputed territory of Kashmir, the streets were secluded, people locked in their homes, major J & K political leaders were quarantined, euphemistically under a house arrest. On the other hand, there were major consultations involving the PM, Home Ministry, Defense Ministry and National Security Advisor. And the nation and the international community was wondering as to what was going to happen. It did not take much time for Amit Shah to clear the clouds of uncertainty and announce the momentous step of abrogating the much controversial Article 370 and 35A of the Indian Constitution. The Jammu and Kashmir Reorganization Bill, 2019 withstood the test of legislative scrutiny and was passed untouched. Thanks to the absolute majority of BJP in Lok Sabha and the support of other political parties in Rajya Sabha, the bill took no time to get the consent of President.

An important point to be noted here is Article 370 has not been removed from the Indian Constitution as the Executive does not have powers to do the same. But, it has definitely withdrawn the Special Status given to the territory of Jammu and Kashmir without removing Article 370. The bill has rendered all the provisions of Article 370 useless except for 370(1).     

Special Rights conferred upon J & K residents against Article 370 and 35A –

  • The Article 370 is defined under Part XXI of the Indian Constitution which deals with Temporary, Transitional and Special Provisions.
  • Article 370 restricts Indian parliament to make any laws for the state and it can only preside over the subjects like Defence, External Affairs, and communication.
  • Laws related to union and concurrent list in J & K can be passed only after consultation with the state government.
  • Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.
  • The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Key Changes made -

The President had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to Kashmir. However, the drastically altered Article 370 will remain on the statute books.

While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.

Now all the provisions and bills passed in Legislature will be applied to the territory of Jammu and Kashmir.

The Chief Minister of the Union Territory is to “communicate” all administrative decisions and proposals of legislation with the Lieutenant Governor.  Thereby, conferring the Lieutenant Governor with many administrative powers.

All Central laws and State laws of J&K would apply to the new Union Territories of J&K and Ladakh.

Assets and liabilities of J&K and Ladakh would be apportioned on the recommendation of a Central Committee within a year.

Employees of State public sector undertakings and autonomous bodies would continue in their posts for another year until their allocations are determined.

The police and public order is to be with the Centre.

How does 35 A affect the people of J & K ?

It treats non-permanent residents of J&K as ‘second-class’ citizens.

Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.

Meritorious students are denied scholarships and they cannot even seek redress in any court of law.

Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.

Upsides of Abrogation of Article 370 –

It treats non-permanent residents of J&K as ‘second-class’ citizens.

Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.

Meritorious students are denied scholarships and they cannot even seek redress in any court of law.

Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.

It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.

The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).

Criticism against such abrogation –

The reduction of the state to a union territory will give a fillip to the concept of constitution being more unitary

The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.

The passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low.

The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess.

A purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people.

Conclusion -

Although, the impact of this move can only be seen in a long run, the government must take proactive measures in the normalizing the current situation of Jammu and Kashmir, which has been boiling due o this move. The government must also take care so that the separatist tendencies do not deteriorate the situations in Kashmir. If not handled appropriately, this move can wreak havoc in the valley.