On Monday, Home Minister Amit Shah presented a Bill in the Rajya Sabha. It scrapped Article 370 that provided special status to Jammu & Kashmir. Onmanorama explains Article 370, Article 35 A and its relevance.
What is Article 370?
Article 370 of the Indian Constitution allows the state government in Jammu and Kashmir to choose the provisions of the Indian Constitution which will reflect in the state.That is, except for defence, foreign affairs, finance and communications, Parliament needs the state government's concurrence for applying all other laws in J&K.
This "temporary provision" under Part XXI of the Constitution of India was intended to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370.
Sheikh Abdullah, drafted the provision in 1947 to protect the interests of the Kashmiri community, after he had been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru.
What is Article 35 A?
While Article 370 granted a special autonomous status to the state, Article 35 A allowed the state to define its 'permanent citizens', their rights and priveleges.
Article 35A confers special rights and privileges upon the citizens of J&K and prohibits people from outside the state from buying/purchasing any immovable property in the state. It also authorizes the state's legislature to define "permanent residents" of J&K and provide them with exclusive benefits.
The order promulgating Article 35A that gives the state legislature the power to define state's permanent residents and their privileges, was issued by then President of India Rajendra Prasad on May 14, 1954.
Is abrogation of 35 A and 370 constitutionally valid?
Constitutional experts say the order to rescind (abrogate article 35A) would be constitutionality and legally valid. Unlike Article 35A, Article 370 is a formal part of the Constitution. This article has to be amended through Article 368(1) of the constitution.
The Lok Sabha and the Rajya Sabha would have to pass the amendment, and then half the states would have to agree with this decision. It's a long-drawn process, but can be done, according to a Constitution expert, who sought to stay anonymous citing the sensitivity of the matter.
Following the abrogation of Article 370, Parliament would have the power under the Constitution to re-draw the boundary of J&K. Until now, J&K's autonomy shielded it from the application of Article 3, which was used to create new states, like Telangana.
The Article 3 provides the avenue for creation of a new state or re-drawing of boundaries through a Bill tabled in Parliament on the President's recommendation after holding consultation with the legislatures of the affected state.
The abrogation of Article 370 will allow the government to re-draw the boundaries and divide the state into different political units. Apart from the resolution to abolish Article 370, Jammu and Kashmir Reorganisation Bill 2019, was also introduced in the Rajya Sabha. It provides for formation of union territory of Ladakh without legislature and a separate one for Jammu and Kashmir with legislature.
(With inputs from IANS.)
