Article 370 – Part 2

The Jammu and Kashmir Reorganisation Act, 2019:

The Act recognises the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir with a legislature and the Union Territory of Ladakh without a legislature.

The Union Territory of Ladakh will consist of  Kargil and Leh districts and the Union Territory of Jammu and Kashmir will consist of the remaining territories of the existing state of Jammu and Kashmir.

Some of the important provisions of the bill are as follows :

  • The Union Territories of Jammu and Kashmir and Ladakh will be administered by the President through Lieutenant Governor.
  • The Union Territory of Jammu and Kashmir will have a Council of Ministers (The strength of the Council should not be more than ten percent of the total number of members in the Assembly). The Council will aid and advise the Lieutenant Governor on matters that the Assembly has powers to make laws.
  • There will be a single common High Court (i.e., the High Court of Jammu and Kashmir) for the Union Territories of Ladakh and Jammu and Kashmir.
  • An Advocate General will provide legal advice to the government of the Union Territory of  Jammu and Kashmir.
ProvisionsBefore [J&K legislative assembly had special powers] Now [No special power to J&K  legislative assembly] 
Citizenship 
  • Permanent and non-permanent resident status of J&K along with Indian citizenship.
  • Single citizenship of India
Flag
  • It had its own state flag along with the tri-colour        .
  • Indian tri-colour would be considered as the only flag.
Changing the name/area/boundary under Article 3 
  • Union government could not alter the area, name and boundaries of J&K without the consent of the state legislature.
  • Article 3 is now applicable and thus, J&K Reorganisation Bill was introduced.
Fundamental Rights (Part III) 
  • Part III (dealing with Fundamental Rights) was applicable to the state with some exceptions and conditions.
  •  For instance, the fundamental right to property was still guaranteed in the state.
  • Part III of the Indian Constitution would be applicable in the same way as the other states.
Directive Principles(Part IV) and Fundamental Duties (Part IV A) 
  •  Not applicable to the state.
  • The J&K Constitution had its own set of directive principles and did not include any fundamental duties.
  • Part IV and IVA of the Indian Constitution would be applicable in the same way as the other states.
National Emergency (Article 352)
  • A proclamation of emergency could have been made in J&K on the ground of internal disturbance (with the concurrence of the state government) or
  • on the grounds of war or external aggression[ without the concurrence of the state government].
  • National emergency could be declared on the basis of “external aggression or war” and “armed rebellion” in J&K(as in other parts of the country).
Financial Emergency(Article 360)
  • Article 360 of the Indian Constitution was not applicable.
  • Article 360 will now be applicable.
State Emergency
  • The State Emergency (President’s Rule) was applicable to the state- on the grounds of failure of the constitutional machinery under the state Constitution and not the Indian Constitution.
  • The provisions of Article 356 would now be applicable similar to the rest of the country.
Governor’s Rule 
  • The Governor’s Rule could be imposed when the state administration could not be carried on in accordance with the provisions of the J&K Constitution.
  • In such a scenario, the governor(with the concurrence of the President of India) could assume all the powers of the state government.
  • No such provision exists now.
Extension to the emergency (Article 365) 
  • The President had no powers to suspend the state assembly on the grounds of failure to comply with the directions given by him.
  • Article 365 can be used to suspend the state assembly.
Central laws
  • Earlier, the Central government had to seek approval of the State Legislature to enact laws on the subjects mentioned in the Union and Concurrent list.
  • No such approval is now required.
Law and Order 
  • Provisions of Ranbir Penal Code were applicable.[IPC was not applicable]
  • Provisions of the Indian Penal Code would be applicable.
5th  and 6th Schedule 
  • Did not apply to the state.
  • The 5th Schedule and 6th Schedule provisions would now  be applicable to the UTs.
Preventive Detention Laws 
  • Only the state legislature of J&K had the power to  make preventive detention laws.
  • The preventive detention laws of the Parliament can now be made applicable to the state.
Issuing writs
  • The High Court of J&K could issue writs only for the enforcement of the fundamental rights and not for any other purpose.
  • The High Court of J&K can now issue writs for other purposes as well along with for enforcing  the fundamental rights.
Reservation for minorities
  • No reservation for minorities such as Hindus and Sikhs.
  • Minorities will be eligible for reservation.
Property ownership
  • Indian citizens from other states cannot buy land or property in J&K.
  • People from other states will now be able to purchase land and property in J&K.
Right to Information
  • RTI was not applicable.
  • RTI would now be applicable.
Assembly Duration
  • The duration of the state assembly was for 6 years.
  • The duration of the assembly of union territory of J&K will be 5 years.
Local bodies
  • Panchayats were governed under J&K Panchayati Raj Act, 1989. They did not have the same rights as in other states.
Panchayats would be governed by the 73rd and 74th Constitutional Amendment Act of the Indian Constitution.
Right to Education 
  • RTE wasn’t applicable.
  • RTE would now be applicable.

 

Article 370: Analysis of abrogation

1.National Integration:

  • Abrogation of Article 370 allow non-residents of J&K from buying property in J&K, setup business enterprises, thus promoting economic growth and integrating J&K with the rest of the country.

2.End of discrimination:

  • Article 370  has been criticised of being discriminatory on the basis of caste, class, gender and place of origin.
  • For instance, many who migrated from Pakistan post-partition were not given Permanent Resident Status, voting rights etc.
  • Similarly, Article 35A was discriminatory to the Valmikis.
  • The Valmikis (Dalits) were brought in from Punjab as government sweepers in 1957.
  • But the provisions of Article 35A prevented them from getting a permanent resident status.

3.Right to Education:

  • Right to Education would now be applicable in the region. This would pave the way for universal elementary education across the region.

4.Tackling corruption:

  • A CAG report had pointed out that the anti-corruption agencies were not able to function in J&K due to Article 370.

5.Tapping tourism potential:

  • Abrogation of Article 370 is expected to improve the internal security which helps in growth of tourism and employment opportunities to the locals.

6.Tackling militancy:

  • With the new growth prospects, investment climate and national integration, it is expected that radicalisation of youth and militancy will die down.

7.Restoration of tribal rights:

  • Due to Article 370, rights of the tribes, such as- Dogras, Bakarwals, Gujjars etc were not recognized. Abrogation of Article 370 is expected to change this.

However, the criticism is as follows:

1.Against federalism:

  • The J&K Bill reduced the status of J&K from a state to two union territories.
  • It goes against the principles of federalism, which is a part of the basic structure of the Constitution.

2.Against SC judgement:

  • In 2018, the Supreme Court while hearing a petition had observed that the Article 370 had acquired a place of permanence in the Indian Constitution.
  • Thus, the abrogation of the special provisions in Article  370 may increase litigations.

3.Fear of Alienation:

  • The decision to abrogate Article 370 was taken without consultation with the Kashmiri people. It may alienate the people of J&K .

4.Security Challenges:

  • The move of the Centre may further radicalise the local youth and perpetuate militancy in Kashmir Valley.

Article 370: Supreme Court Rulings

Sampat Prakash vs. J&K,1968The Supreme Court stated that Article 370 will only dissolve upon the recommendation of the Constituent Assembly under Article 370(3).
SBI vs. Santosh Gupta,2016It ruled that the provisions of the SARFAESI Act applied to J&K as the Parliament had the legislative powers to enact the provisions because India’s Constitution was superior to J&K’s.
Puranlal Lakhanpal v. The President of India, 1961The Supreme Court held that the President has the power to modify the Constitution under Article 370. However, the Supreme Court did not clarify whether the President had the sole power to amend the Constitution.

 

Article 370- International reactions

Pakistan:

  • Pakistan has downgraded diplomatic relatins with India by taking measures, such as : stopping all trade relations with India, halting the Samjhauta Express etc.
  • Along with it, Pakistan has approached UNSC, OIC, China and other countries seeking action against India.

Russia:

  • Russia has backed India’s move and has stated that the reorganisation of J&K is within the framework of the Constitution.

Others:

  • Several other countries like USA, UAE have called it an internal matter of India.

 

The Centre should ensure that adequate steps are taken to improve security in the region, alleviate the fear of local community and mainstream the Kashmiris in the Indian development story.

 

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