Why in the News?
The
Supreme Court is set to test the constitutionality of repeal of Article 340 of
2018.
What is Article 370?
1. Jammu & Kashmir (J&K), a princely state during
British rule, wanted to remain as an independent state post-independence.
2. But, Raja Hari Singh, the ruler of J&K had to
sign the Instrument of Accession with India following Pakistan's invasion against
it on Oct 26, 1947.
3.
A
Special status for J&K was negotiated by its first Prime minister Sheikh Abdulla
in the constituent assembly.
4.
Article
370 was introduced as a temporary provision that conferred special status to J&K
a. Only those aspects of the Indian Constitution agreed
upon in the Instrument of Accession shall be applicable to J&K.
b.
Laws
can be made applicable to J&K only by the President with the consultation
of the State government in the matters of Defence, Foreign affairs and communication.
There by, it restricted the power of the Parliament.
c. For application of other articles of the constitution
presidential order with concurrence of the state government is mandatory.
d.
Using
the special provisions, a constituent assembly drafted and adopted a
constitution exclusively for J&K.
e.
Article
35A
·
Was
introduced under article 370 through a presidential order in 1954
·
It
defined the states 'Permanent residents, the especial rights and privileges.
·
Permanent
residents were defined as people who were astate subject as of May 14, 1954 or a
resident of the state for 10 years any time since.
·
Permanent
residents alone could buy and own property in the state.
5.
Abrogation
of Article 370-2 Presidential orders
a. First Presidential order - To neutralize the
Fail-safe mechanism inherent in Article 370(3) that specifies mandatory president's
concurrence with Constituent assembly of the state to amend/ revoke a
provision. The order made following changes,
·
New
Interpretation clause- The Governor of J&K shall deem to act on behalf the elected
representatives of the state for time being. At that time, the state was under President's
rule.
·
'Constituent
assembly of the state' was substituted with the expression 'Legislative assembly
of the state'.
b. Second Presidential order
·
Made
the entire constitution of India applicable to J&K by taking Governor's concurrence.
·
The
order superseded the Constitution (Application to Jammu & Kashmir) Order,
1954 which defined the constitutional position between J&K with Indian Union.
c.
The
state was broken into two Union territories (UTs) of J&K and Ladakh with the
former having a legislative assembly.
·
Bypassing
J&K Reorganisation Act, 2019.
·
Now
Parliament became heir legislatives due to their UT Tag.
·
Later,
Delimitation exercise was carried out by making the Delimitation Act, 2022 applicable
to J&K.
On what grounds there peal of Art
370 has been challenged in the court?
1. Making permanent changes to the state under the President's
rule is against the constitutional ethos.
2. Taking Governor's consent to null if y Art 370 is
a kin to Centre taking its own consent. It is against the Federal spirit of the
Constitution.
3. Art 370 can be modified only on recommendation of
J&K Constituent assembly and it is not subject to amendment powers of the constitution.
Down side of the abrogation:
1. Huge trust deficit as governmental policies are looked
upon with suspicion as hidden agenda.
·
For
instance, Anti-encroachment drive, policy allowing outsiders to buy land in J&K,
the delimitation exercise is seen as an attempt to change the demography of J&K.
The upside of the move:
1. Militancy has been on decline, with only 4 encounters
in Kashmir in this year so far.
2. Tourism is in the boom phase: All time high of 2.3
million visitors in 2022
3. Integrated development through Industries.
·
New Industrial policy post 370 abrogation has drawn
investment worth Rs.60000 crore, four fold compared to the last 70 years in J&K.
