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Abrogation of Article 370 and 35A of the Constitution of India

Article 370 and article 35A
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“The sovereignty of scriptures of all religions must come to an end if we want to have a united, integrated modern India”

-Dr. B. R. Ambedkar

Introduction

On 5th August, 2019, the Hon’ble President of India promulgated the Constitution (Application to Jammu and Kashmir Order), 2019. It revokes the special status given to the Jammu and Kashmir given under Article 370 and 35A. A separate bill, the Jammu and Kashmir Reorganization Bill, 2019 was introduced to bifurcate the state into two separate union territories of Jammu and Kashmir (with legislature), and Ladakh (without legislature). 

Article 370

Article 370 was included in Indian Constitution on October 17, 1949, as a ‘temporary provision’, which exempts Jammu and Kashmir from the Indian Constitution as such; it allows Jammu and Kashmir to draft its own Constitution and restricting the Indian Parliament’s legislative powers in the state.

In short it accorded special status to the state, giving the Jammu and Kashmir legislature free rein to draft its own laws, except in areas of communications, defence, finance and foreign affairs. As result, Jammu and Kashmir had its own distinct flag, penal code and constitution.

Therefore, abrogation of Article 370 effectively revokes the special status accorded to Jammu and Kashmir under the provision of Article 370, and whereby the provisions of the constitution which were applicable to other states but not to Jammu and Kashmir are now applicable in the state of Jammu and Kashmir as well. 

Article 35A

Accordingly, Article 35A was inserted as a part of amendments made through presidential order imposed under Article 370 of the constitution. It gives powers to Jammu and Kashmir to declare a class of persons as ‘permanent residents’ of the state.

It further empowers the government to give such persons special rights and privileges in matters of public employment, acquisition of immovable property in the state, settlement in different parts of the state, voting rights and other such aids that the state governments might provide.

Further, Article 35A provides that, legislations that confer special rights and privileges are exempt from being annulled on the ground that they infringe on any of the fundamental rights provided under the Indian constitution.

Conclusion 

Though the presidential order may face legal scrutiny, as matters currently stand, Jammu and Kashmir will witness historic political and geographical changes. Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India; as a matter of fact it has been described as a tunnel through which the constitution is applied to Jammu and Kashmir.

India has used Article 370 at least 45 times to extend provisions of the Indian constitution  to Jammu and Kashmir as such by the present abrogation is the only way through which, by mere presidential orders, India has almost nullified the effect of Jammu and Kashmir’s special status. Also, by the 1954 presidential order, almost the entire constitution was extended to Jammu and Kashmir including most constitutional amendments.

However, abrogating the article altogether may threaten the peace in the state which is already a hotspot of conflicts and militancy; it will also change the relationship between the state and the rest of India. Lastly, as the abrogation of Article 35A allows Indian citizens to purchase land and settle permanently in Jammu and Kashmir. This move is bound to have a significant impact on the demography, culture and politics of Jammu and Kashmir. 

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Written by Arnab Chanda

A 6’, aspiring Advocate, Arnab Chanda, hails from the plains of Assam, currently a 4 th year B.A.
L.L.B student at Sharda University. Being a fanatic Manchester United fan, foodie and a car
enthusiast, his leisure time mostly revolves around trying out new dishes, playing football and
reviewing cars, though he also enjoys to travel and to explore new places. He is a very hard-
working, punctual and sincere person who likes to give his best in everything that he does, but
does not miss a chance to use his humour to light up the mood of his surroundings and to
spread positivity. He’s a momma’s boy who soulfully respects his elders and wants to serve the
society for its welfare.

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