Article 370 to be scrapped; J&K, Ladakh to be Union Territories: Recent Update on the Jammu & Kashmir Issue [Read Order]

Home Minister Amit Shah on 5th August, 2019, announced in Rajya Sabha that the Centre has decided to repeal Article 370 and 35-A of the Constitution which grants a special status to the state. Recent massive developments in Kashmir have to lead to panic in the area.

Here in this article we will look into the outlook of Amit Shah and Mehbooba Mufti on Article 370, the recent update and the outcome of these update.

Amit Shah on Union Territory status to J&K:

“Keeping in view the prevailing internal security situation, fuelled by cross border terrorism in the existing state of Jammu and Kashmir, a separate Union Territory for Jammu and Kashmir is being created. The Union Territory of Jammu and Kashmir will be with legislature.”

Amit Shah said: they have decided to bifurcate the states into two separate Union Territories Jammu and Kashmir, both of them will have a legislature and Ladakh will be without a legislature. 

Shah presented the amendment amidst the uproar from the opposition. He further said: “I am presenting the resolution to revoke Article 370 in Jammu and Kashmir except the first clause 370 (1).” 

The after-effects of the announcement

The announcement was met with an outrage from the opposition. In the valley, prominent leaders like Mehbooba Mufti, Omar Abdullah and Sajjad Lone are put under house arrest. Section 144 is imposed from midnight itself banning public gathering in Srinagar. Additionally, internet and mobile service were shut down at several places. 

What is Article 370?

Article 370 is a temporary provision that was inculcated on 17th October 1949, granting special autonomous status to the state of Jammu and Kashmir. It permits the state to draft its own Constitution. Under the Constitution of India, part XXI, the state of Jammu & Kashmir has been accorded special status under article 370, and all the provisions of the Constitution do not apply to J&K. 

Under this article, Parliament needed the state government’s concurrence for applying all laws except defence, foreign affairs, finance, and communications laws. Therefore, the residents live under a separate law for citizenship, ownership, and fundamental rights.

Under Article 370, the Centre did not have the power to declare a financial emergency in the state. Furthermore, the Centre can declare emergency only in case of war or any external aggression. The Centre could not declare an emergency based on internal disturbance or any imminent danger unless a request has been made with a concurrence of the state government.

Constitution expert and former Secretary-General of the Lok Sabha Subhash Kashyap, said “Article 370 was a temporary provision. There are three types of provisions in the Constitution- temporary, transitional, and special, with temporary being the weakest.”

Article 35A

Article 35A of the Constitution introduced by President Rajendra Prasad in 1954 as an outcome of protest by Kashmiri Pandits against the appointment of people from Punjab in the administrative department of the state. 

It grants the J&K Government for deciding the fact who will qualify as a permanent resident of the state. Only those having permanent residentship could acquire land and get government jobs etc. in the state. The NDA government has refused to stand in accordance with Article 35A. 

The Constitution (Application to Jammu and Kashmir) Order, 2019-Key Highlights

In exercise of the powers under article 370(1) of the Constitution, President Ram Nath Kovind promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019. This order supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954. Following are the few Key Highlights-

• All the provisions of the Constitution are equally applicable to the State of Jammu and Kashmir. (This move has repealed the long resisted provision of Article 370.)
• The constituent Assembly under article 370(3) is changed to a legislative one. 
• Moreover, it added a clause to Article 367, which states as under:

“(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir—

(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said state;

(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;

(c) references to the Government of the said state shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and

(d) in the proviso to clause (3) of Article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State.”

Darkest Day in Democracy or not?

Mehbooba Mufti who has been put under House Arrest as an after effect of the scrapping of Article 370, took to twitter to showcase outrage; she says that it is one of the darkest days of democracy. The decision of J&K leadership to reject 2 nations’ theory in 1947 and align with India has backfired.

In addition to this Omar Abdullah said the decision is an attack, a betrayal of trust of the people of Jammu and Kashmir.

Only time will tell whether this move with have dangerous consequences or not.

“It will have catastrophic consequences for the subcontinent. Government of India’s intentions is clear, they want the territory of J&K by terrorising its people. India has failed Kashmir in keeping its promises,”

-said Mehbooba Mufti

Conclusion

Kashmir has been on the edge of massive outrage for quite some time now. The Presidential order will remove the special status of the state and place it at par position with all the other states of the country. Whether this move is beneficial to the society or not only time will tell. 

Read Order here.

For more information, contact our team of lawyers at LawyerINC.