Published: 05th August 2019
Article 370 explained: Everything you need to know about the controversial legislation that shaped Kashmir
The series of decisions was tabled in Rajya Sabha amidst huge uproar from the opposition which stoutly resisted them after which the President ratified the same with immediate effect
Kashmir and Jammu division will be the newest separate Union Territory and so will Ladakh, announced Home Minister Amit Shah after he moved a resolution in the Rajya Sabha that all clauses of Article 370 will not be applicable to J&K. Article 370 gave special status to the state of Jammu and Kashmir and has now been declared as abrogated, after the declaration of the President of India.
The article is seen as the only string of Constitutional relationship between the state of Jammu and Kashmir and the rest of the country. But the Home Minister did not agree to this line of thought. "The fact is that Maharaja Hari Singh signed (the Instrument of Accession) on October 27, 1947, while Article 370 came into existence in 1949. So, this is wrong to say that Article 370 brought Jammu and Kashmir and India together," the Minister told the Rajya Sabha. The people from the valley have been worried — since the BJP leaders have been advocating against the special status of the state — about the bloodshed they presumed the repealing of Article 370 would trigger. "They want to disempower Muslims to the extent where they become second class citizens in their own state," said Mehbooba Mufti after Amit Shah moved to revoke the Article 370. "The government's intention is clear and sinister — to change the demography of India's only Muslim majority state," she added.
The resolution said that the President, on the recommendation of the Parliament, is pleased to declare that, as from August 5, 2019, all clauses of the said article 370 shall cease to be operative except clause (1). Shortly after the Home Minister tabled these documents, President Ram Nath Kovind came out with a notification -- The Constitution (Application to Jammu and Kashmir) Order, 2019 that will come into force immediately. The order will supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time. The notification also made clear that all the provisions of the Constitution as amended from time to time, shall apply in relation to the state of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply. It also added a clause (4) to Article 367 which said,"(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 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"."
Permanent or not?
But abrogation of Article 370 will not be that simple. The Supreme Court of India, on April 3, 2018, had declared that Article 370 has acquired permanent status. It added that since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfil the mandatory provisions required for its abrogation. The Jammu and Kashmir High Court had ruled in 2015 that Article 370, granting special status to the State, has assumed a place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.
How special was it?
According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy. The State did not have to follow the Constitution of India fully — the state was allowed to have its own Constitution. The Centre's legislative powers over the State were limited, at the time of framing the Article, to the three subjects — defence, foreign affairs and communications. According to Article 370, other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government — the 'concurrence' was only provisional. The State Government's authority to give 'concurrence' lasted only until the then State Constituent Assembly (which no longer exists) was convened. But once the State Constituent Assembly dispersed there was no official body to grant the Centre any say in State matters and other provisions continued to be extended to the State with the 'concurrence' of the State Government.
The history of it all
The article is drafted in Part XXI of the Constitution — Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was given the power to recommend the articles of the Constitution that should be applied to the State or to repeal the Article 370 altogether. Later on, when the J&K Constituent Assembly created the state's constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
The original draft explained, "the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March 1948." On November 15, 1952, it was revised to "the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office."