In a historic move, the Union government on August 5 abolished Article 370, which gives special status to Jammu & Kashmir, and moved a separate Bill to bifurcate the state into two separate Union Territories - Jammu & Kashmir, and Ladakh.

Home Minister Amit Shah moved the resolution to abolish Article 370 as well as the state reorganisation Bill along with listed Bills to extend reservation for economically weaker sections in educational institutions and government jobs in Jammu & Kashmir.

The reorganisation Bill provides for the formation of the Union Territory of Ladakh without a legislature and a separate one for Jammu & Kashmir with a legislature.

Background

In 1947, Maharaja Hari Singh, the ruler of Jammu & Kashmir, had decided to remain independent and sign standstill agreements with India and Pakistan. But, following an attack from Pakistan, he turned to India for help. India sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession (IoA) on October 26, 1947. It was approved the next day. Every year, Accession Day is celebrated in J&K on October 27.

Article 370 was made in the Indian Constitution for continuance of the state of Jammu & Kashmir with the Union of India on the basis of the IoA.

Through this Article, Parliament gets the jurisdiction to enact laws on matters specified either in the IoA or by later addition with concurrence of the government of the state of Jammu & Kashmir.

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 January 25, 1957 without recommending either abrogation or amendment of the Article 370.

The highlights

Article 370 exempts Jammu & Kashmir from the Indian Constitution and permits the state to draft its own constitution. Provisions of the Indian Constitution do not automatically apply to the state.

Parliament’s legislative power over the state was restricted to three subjects - defence, external affairs and communications.

The president could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the IoA. For this, “consultation” with the state government was required. For extending a central law on subjects included in the IoA, concurrence with the state government is required.

Article 370(3) empowers the president to make an order abrogating or amending it.

What is Article 35A?

Article 35A is incorporated in the Constitution giving the Jammu & Kashmir Legislature a provision to decide who all are “permanent residents” of the state and confer on them special rights and privileges in public sector jobs, acquisition of property in the state, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

It was incorporated into the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.

The presidential order was issued under Article 370(1)(d) of the Constitution. This provision allows the president to make certain “exceptions and modifications” to the Constitution for the benefit of “state subjects” of Jammu & Kashmir. Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the “permanent residents” of J&K.

The most important point is, the legislative or parliamentary route was bypassed with the presidential order, which incorporated Article 35A into the Constitution.

An election campaign issue

In the run-up to the 2019 general election, the Congress had promised that it won’t allow any change in the constitutional position on Article 370, will review AFSPA and reduce the presence of armed forces in the Kashmir Valley if it wins the polls.

The BJP had promised in its election manifesto to abrogate Article 370 of the Constitution. “We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370,” read the BJP’s Sankalp Patra.

What did the SC say about Article 370?

If the issue reaches the Supreme Court, it may pose a big challenge for the Modi government.

It its verdict on April 3, 2018. the Supreme Court said that Article 370 of the Constitution, which gives special status to Jammu & Kashmir, is not a temporary provision.

The apex court said that in its earlier verdict of 2017 in the SARFAESI case, it has already held that Article 370 was “not a temporary provision”.

“The issue concerned is covered by the judgment of this court in the 2017 SARFAESI matter, where we have held that despite the headnote of Article 370, it is not a temporary provision,” said a bench of justices A.K. Goel and R.F. Nariman.

The apex court was hearing an appeal against the Delhi High Court’s April 11, 2017 order dismissing a plea seeking a declaration that Article 370 is temporary in nature. The petitioner had claimed before the High Court that Article 370 was a temporary provision that had lapsed with the dissolution of the Constituent Assembly in 1957.

The petition had said that the continuance of the temporary provision of Article 370, even after dissolution of Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”.