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Article 370 and Kashmir

Article 370 and Kashmir

UPSC CSE Mains Syllabus: GS-2-   Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Article 370 and Kashmir

Article 370:

  • It is the first article of Part XXI of the Constitution.
  • The heading of this part is ‘Temporary, Transitional and Special Provisions’.
  • Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
  • It grants special status to Jammu and Kashmir state and allows permanent residents rights to property and government jobs (Article 35 A).
  • The Union of India could legislate/act only in defence, foreign affairs and communications.
  • Article 370 said no changes could be made to the Constitution regarding the status of J&K without the concurrence of the state’s constituent assembly.

Procedure for revocation:

The President, promulgated the Constitution (Application to Jammu & Kashmir) Order, 2019 (the Order), in concurrence with the Government of State of Jammu & Kashmir, with immediate effect.

The order supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954 and states that all the provisions of the Constitution of India shall apply to the State of Jammu and Kashmir (J&K).

Two important clauses of the order,

  1. 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
  2. With respect 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“.

Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. But this has been changed with the recent Presidential order.

Explanation provided: The government explained that since the state is presently under the President’s rule under Article 356 of the Indian Constitution, the Parliament vested with the powers otherwise exercisable by the Legislature of the state. Thereby, in view of Article 356(b), the Parliament was well within its powers to legislate on this bill.

Article 356(b): declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

Legal challenges:

  • The President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly.
  • One problem, is that the constituent assembly of the state was dissolved in 1956 itself.
  • The government has tweaked another constitutional article so that a reference in Article 370 to “constituent assembly of the state” becomes “legislative assembly of the state”.
  • The legality of that move, could be questioned in court.
  • A major legal challenge could be whether the Presidential rule fulfil the requirement for enacting such a change.
  • Moreover, the Supreme Court in April 2018 said that despite the head note using the word “temporary’, Article 370 is not temporary.
  • In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary.
  • A five-judge Bench said “Article 370 has never ceased to be operative” and that, it is a permanent provision.

Way forward:

  • The Kashmir conflict is a function of complex historical grievances, politico-ethnic demands, increasing religious radicalisation, and Pakistan’s unrelenting interference in the Kashmir Valley.
  • It would be simplistic to imagine that such a multi-layered and complex conflict can be resolved by the stroke of a pen effecting a constitutional change or providing an economic package.
  • The question that needs to be asked is, has the removal of the special status brought Kashmir closer to India, reduced the sources of extremism and separatism, and undermined Pakistani influence in the Valley?
  • Most indicators of violence in Kashmir have shown an uptick despite the double lockdown that Kashmir is under today.
  • There are two steps the Centre can take to start a conversation with the people of J&K — release all political prisoners and restore its Statehood.

Source:”The Hindu”.


POSSIBLE UPSC CSE MAINS QUESTION:

Discuss the legal challenges in revoking the Article 370 of the Indian constitution. Has the removal of the special status brought Kashmir closer to India? Analyse.