TABLE OF CONTENTS
Revocation of Article 370
On the 5th of August 2019, the Union Home Minister Amit Shah passed a bill in the Parliament (Rajya Sabha which is the upper house) stating that the President of India had issued The Constitution (Application to Jammu and Kashmir) Order, 2019 ,under Article 370, has officially surpassed The Constitution (Application to Jammu and Kashmir) Order, 1954 which was proposed in the mentioned year by the then Prime Minister of India, Jawaharlal Nehru.
This order issued by Amit Shah further stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir would now be revoked. The 1954 order specified that only a few articles of the Indian constitution were to apply to the state.
The 2019 aimed to permanently remove all such restrictions in the states. This in turn consolidated the foundation of a Union Territory in Jammu and Kashmir. It revoked the “special status” of the states and stated that the separate Constitution of Jammu and Kashmir stood invalid.
Immediately after placing the Presidential Order 2019 before the Rajya Sabha, Home Minister Amit Shah moved a resolution recommending that the president issue an order under article 370 stating specifically that all the clauses of Article 370 will not be operating any longer.
This resolution was then adopted by both houses of the parliament (the Rajya Sabha and the Lok Sabha). Furthermore the president issued Constitutional Order 273 on 6 August 2019 which took the place of Constitutional order 370, stating the following:
All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.
Key Facts about Article 370
Started in 1954, by the then Prime Minister of free India, Jawaharlal Nehru, article 370 granted special status to the states of Jammu and Kashmir. This meant that the mentioned states, although a part of the Indian subcontinent, were allowed to have a separate constitution of their own.
They had their own exclusive government and no immigrant could purchase or put up a permanent settlement there. Kashmir had been a major reason of conflict in between India, Pakistan and China ever since partition of India in 1947. Pakistan had been bound of making Kashmir a part of their country and this had resulted in several terrorist attacks in India, and Indo-Pak wars between the two countries.
By the revocation of Article 370 along with article 35A, the special status of Jammu and Kashmir was stripped off and the states officially came under the Indian constitution from 2019, preventing them from having a separate constitution of their own and ending their independent rule.
Article 35A stated that the citizens of Jammu and Kashmir were ruled by a separate set of laws. Even the laws relating to ownership of properties, and purchase of land was different from citizens of India dwelling in other states of the country. This in turn prevented people from other states from owning or purchasing any land or property in Kashmir or even putting up a permanent settlement there.
However after the 5th of August 2019, all this was amended and Jammu and Kashmir lost their special status making them a part of India’s governmental set-up and protecting them from further terrorism threats. In addition to this, the Jammu and Kashmir Reorganisation Act was passed by the parliament, enacting the division the state of Jammu and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
Jammu and Kashmir is a Union Territory with a Legislature and Ladakh is a Union Territory without a Legislature. This reorganisation is scheduled to take place on the 31 October 2019.
Events leading up to the revocation of Article 370
The Jammu and Kashmir, which is a princely state formerly governed by their Chief Minister, Mehbooba Mufti, original succeeded, like all other Princely states of India, based on the matters of defence, foreign affairs and communications.
During the making of the Constitution of India by the Constituent Assembly just after gaining independence from the British Rule in 1947, all the princely states were invited to send representatives to India’s Constituent Assembly, which was formulating a constitution for the whole of India.
These princely states were also encouraged to set up constituent assemblies for their own states by the members of the Assembly, so as to make matters more easy flowing and efficient.
However, due to the lengthy and excruciating process of selecting efficient members and knowledgeable people worthy of making a Constitution, most of the states were unable to set up their assemblies within the stipulated time frame.
Nevertheless, a few states managed to set up Constituent Assemblies. To be more exact, Saurashtra Union, Travancore-Cochin and Mysore were among those states who managed to do so.
But even so the States Department developed a model constitution for the states meant to provide them special status and maintain a separate constitution for themselves , in May 1949, the rulers and chief ministers of all the states met and agreed upon that separate constitutions for the states were not necessary as they were a part of the Indian subcontinent and wanted to be unified under the same Constitutional frame that governed the rest of their country.
Hence they readily accepted the Constitution of India as their own constitution. However states that did elect constituent assemblies suggested a few amendments which were accepted. Thus the position of all these states that formed Constituent Assemblies of their own, (or unions of states) became exactly similar and equal to that of the regular Indian provinces.
However matters were quite different in the case of Jammu and Kashmir. The representatives that were selected to form the separate Constituent Assembly for the states of Jammu and Kashmir, met and agreed that they should have a separate constitution of their own and hence requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State.
Hence in order to fulfil their request, the Article 370 was incorporated into the Indian Constitution by the then Prime Minister of Indian, Jawaharlal Nehru in 1954 which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only om consultation and on the agreement of the State’s constituent assembly and not otherwise.
This was however not a permanent basis decision but only a temporary provision meaning that it was only valid and applicable and was intended to last till the formulation and adoption of the State’s constitution was officially completed.
However, the State’s constituent assembly dissolved itself on 25 January 1957 without making any recommendation on their part or taking any action to either revoke or amend Article 370, which existed in full force till the 5th of August 2019.
Thus the Article by default became a permanent part of the Indian constitution conferring the special status to Jammu and Kashmir and making them a part of the country, living off it in all aspects, and yet not falling under the country’s Constitutional machinery.
This theory was confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir and latest of many such confirmations was given in April 2018, and thus enlisted the following six special provisions :
Provisions of Article 370
- It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
- Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
- 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. It had to be ratified by the State’s Constituent Assembly.
- The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
- Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.
As of now all the provisions of Article 370 remains suspended for an unprecedented term and Jammu and Kashmir along with the 7 former Union Territories come under the direct rule of the Delhi government, under the supervision of Prime Minister Narendra Modi.