Omar Bennett
Article 370 of the Indian Constitution was a temporary provision that granted special status to the state of Jammu and Kashmir, allowing it to have its own constitution, flag, and autonomy in internal administration. This article came into effect in October 1949, after the Muslim-majority region's Hindu ruler signed an agreement to join India in 1947. It allowed the state to formulate its own laws, except in matters of defence, foreign affairs, finance, and communications. The special status was revoked by Prime Minister Narendra Modi's government in 2019, sparking controversy and condemnation from activists, opposition leaders, and the Pakistan government. The Supreme Court upheld the repeal, stating that Jammu and Kashmir should have the same statehood as any other Indian state without separate autonomy rights.
| Characteristics | Values |
|---|---|
| Status | No longer a part of the Constitution |
| Applicability | State of Jammu and Kashmir |
| Type | Temporary provision |
| Purpose | Protect the special status of Jammu and Kashmir |
| Autonomy | Allowed the state to have its own constitution, flag, and autonomy over most matters except defence, foreign affairs, and communications |
| Integration | Hindered the complete integration of Jammu and Kashmir into the Indian Union |
| National Security | Exploited by Pakistan to support terrorism and separatism in the region |
| Date of Adoption | 17 October 1949 |
| Date of Abrogation | 5 August 2019 |
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What You'll Learn
The revocation of Article 370
Article 370 of the Indian Constitution was a 'temporary provision' that gave special status to the state of Jammu and Kashmir (J&K). It was drafted by N Gopalaswami Ayyangar, a member of the Constituent Assembly of India, and added to the constitution in 1949. The article allowed J&K to have its own constitution, flag, and autonomy over matters other than defence, foreign affairs, and communications. The unique circumstances in J&K, including the ongoing war in the state, the involvement of the United Nations, and the promises made by the Indian government, led to the creation of this special provision.
On 5 August 2019, the Indian government revoked the special status granted under Article 370. This decision was made to enhance the constitutional integration of J&K with the rest of India and to address issues related to national security and separatism. The revocation was done through a Presidential order, with the recommendation of both Houses of Parliament, the Lok Sabha and the Rajya Sabha. The Lok Sabha and Rajya Sabha passed the Jammu and Kashmir Reorganisation Act, 2019, which bifurcated the state into two Union Territories: Jammu and Kashmir, and Ladakh.
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The impact on Kashmir's special status
Article 370 of the Indian Constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent. It is a region that has been disputed by India, Pakistan, and China since 1947. The article was drafted in 1949 and added to the constitution as a 'temporary provision' to protect the special status of Jammu and Kashmir. It allowed the state to have its own constitution, flag, and autonomy over most matters except defence, foreign affairs, and communications.
The impact of the repeal of Article 370 on Kashmir's special status was significant. Firstly, it resulted in the loss of autonomy for Jammu and Kashmir, which was effectively integrated as a Union Territory into the Indian Union. This meant that the region would now be governed directly from New Delhi, with the same laws and constitution as the rest of India. The region's separate constitution, flag, and criminal code were also revoked, and the region was bifurcated into two Union Territories: Jammu and Kashmir in the west and Ladakh in the east.
Secondly, the repeal of Article 370 also led to the scrapping of Article 35A, which had been added to Article 370 in 1954. Article 35A empowered state lawmakers to grant special rights and privileges to permanent residents of the state, such as in matters of residence, property, education, and government jobs. With Article 35A no longer in effect, non-Kashmiris could now buy property in the region, leading to fears among some Kashmiris that the Indian government was attempting to engineer a "demographic shift" in the Muslim-majority region.
Thirdly, the loss of special status impacted the political structure of the region. Before the repeal of Article 370, Jammu and Kashmir had its own state legislature and constitution, with limited powers granted to the central government. After the repeal, the region's state legislature was dissolved, and the central government assumed direct control over the region's governance. This meant that the region would no longer have any regional elections, as the central government would now appoint governors to rule the Union Territory.
Finally, the repeal of Article 370 had implications for national security and human rights in the region. It was argued that the special status granted to Jammu and Kashmir under Article 370 had been exploited by Pakistan to support terrorism and separatism. By repealing the article and integrating the region fully into the Indian Union, the Indian government believed it would strengthen national security and allow for better control over the region to crack down on terrorist activities. However, the human rights situation in the region has also been a concern, with some arguing that the erosion of autonomy and special status has led to lower standards of human rights in Jammu and Kashmir compared to other states in India.
Overall, the repeal of Article 370 had a significant impact on Kashmir's special status, leading to its full integration into the Indian Union and the loss of the region's autonomy and separate constitution. The decision has been controversial, with some celebrating it as a step towards a more united India, while others view it as an annexation and an attempt to change the region's demographics.
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The role of the Indian Supreme Court
The Indian Supreme Court has played a pivotal role in interpreting and enforcing Article 370 of the Indian Constitution, which grants special status to the state of Jammu and Kashmir. The Court's decisions have shaped the understanding and implementation of this controversial and complex article.
One of the key roles of the Supreme Court has been to clarify the scope and extent of Article 370. Over the years, various petitions and cases have been filed challenging the interpretation and application of this article. The Court has provided important rulings that define the relationship between the Indian government and the state of Jammu and Kashmir. The Court has also outlined the powers of the state legislature and the extent to which it can make laws on matters excluded from its competence by Article 370.
A significant aspect of the Court's role has been to adjudicate on disputes arising from the application of laws made by the Indian Parliament to Jammu and Kashmir. As per Article 370, the Indian Parliament needs the concurrence of the state government to apply laws, except for those relating to three subjects: defense, foreign affairs, and communications. The Supreme Court has heard numerous cases challenging the extension of various central laws to the state, and its rulings have clarified the limits of parliamentary power in this regard.
The Supreme Court has also been called upon to interpret the provisions of Article 370 itself. This includes determining the meaning of 'temporary provisions', which is how Article 370 is described in the constitution, and whether this implies a time limit on its applicability. The Court has also ruled on the scope of the phrase 'in consultation with the Government of the State', clarifying the extent of the obligation on the part of the President of India to obtain the concurrence of the state government before issuing a proclamation that would alter the terms of Article 370 or render it inoperative.
In addition to interpreting Article 370, the Supreme Court has also played a vital role in upholding the rights of individuals affected by its application. The Court has heard petitions challenging the detention of individuals under laws enacted using the powers granted by Article 370. It has also addressed issues relating to the fundamental rights of individuals in Jammu and Kashmir, ensuring that these rights are protected despite the unique constitutional position of the state.
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The implications for Jammu and Kashmir
Article 370 of the Indian Constitution, introduced in 1949, granted Jammu and Kashmir a unique status within the Indian Union. It allowed the state to have its own constitution, flag, and a degree of autonomy in internal affairs while maintaining central control over defence, foreign affairs, and communications. The article was drafted to protect the special status of Jammu and Kashmir, given the unique political circumstances in the state at the time, including an ongoing war, the involvement of the United Nations, and promises made by the Indian government.
The implications of the revocation of Article 370 for Jammu and Kashmir are complex and multifaceted. Firstly, it signifies a shift in the relationship between the central government and the region, with Jammu and Kashmir losing its special status and being fully integrated into the Indian Union. This integration is expected to foster development, equality, and a sense of unity with the rest of India. It will also provide better access to resources, infrastructure, and opportunities for the people of Jammu and Kashmir.
However, the revocation has also been met with criticism and concerns. Some believe that it undermines the autonomy and identity of the region, which is the only Muslim-majority state in India. The erosion of political autonomy is particularly concerning for many. Additionally, there are worries about human rights violations and an increase in state control, as seen through the deployment of additional troops, suspension of communication services, and detention of regional political leaders.
The revocation of Article 370 also has implications for the demographic character of Jammu and Kashmir. With the removal of Article 35A, which was introduced under Article 370, special privileges for permanent residents, such as exclusive rights to state government jobs and property ownership, have been revoked. This could potentially lead to demographic changes in the region and impact the distinct cultural and religious identity of Jammu and Kashmir.
The decision to revoke Article 370 has also had broader implications for the region's stability and security. There have been concerns about an increase in violence and protests in response to the revocation, with a history of separatist insurgency and tensions between Indian and Pakistani military forces along the 'Line of Control'. The Indian government's argument for revocation includes national security, believing that it will help crack down on terrorist activities and separatism in the region.
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The significance of Article 35A
Article 35A of the Indian Constitution has been a source of contention in the country. The article, which was introduced in 1954, empowers the Jammu and Kashmir (J&K) legislature to define the state's permanent residents and the special rights and privileges conferred to them.
One of the key implications of Article 35A was its impact on the demographic character of the state. According to the Jammu and Kashmir Constitution, adopted in 1956, a permanent resident was defined as someone who was a state subject on May 14, 1954, or who had resided in the state for at least ten years and owned immovable property. This definition aimed to protect the distinct demographic profile of the state, particularly given its history as a Muslim-majority region within India.
The article also had consequences for women's rights in the state. Under Article 35A, women who married outside of Jammu and Kashmir could lose their permanent resident status, and their children would be ineligible to claim permanent residency or inherit property. This provision was criticised for creating hardships for women and going against the spirit of equality guaranteed by the Indian Constitution.
The controversy surrounding Article 35A also stems from the way it was implemented. While Article 368 of the Constitution empowers only Parliament to amend the Constitution, Article 35A was introduced through a Presidential Order, bypassing the parliamentary route of lawmaking. This led to legal challenges questioning the validity of the article and whether the President acted outside their jurisdiction.
On August 5, 2019, the Indian government issued a Presidential Order superseding the 1954 order, making all provisions of the Indian Constitution applicable to Jammu and Kashmir. This implied that the special status granted under Article 35A was abolished, and the state was reorganised into two union territories: Jammu and Kashmir, and Ladakh.
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Frequently asked questions
Article 370 is a constitutional provision that grants special status to the Indian state of Jammu and Kashmir, allowing it to formulate its own constitution and laws.
Article 370 allowed Jammu and Kashmir to have its own constitution, flag, and criminal code. It also granted the state special privileges in matters such as residence, property ownership, education, and government jobs, which were not available to non-permanent residents.
On August 5, 2019, the Indian government revoked Article 370, stripping Jammu and Kashmir of its special status. The region was also bifurcated into two federally administered territories: Jammu and Kashmir in the west, and Ladakh in the east.
