Article 370 of the Indian constitution is a temporary provision which grant special autonomous status to Jammu and Kashmir. Under part 21 of the constitution of India which deals with temporary, transitional and special provisions which was enjoyed by people of Jammu and Kashmir. The state of Jammu and Kashmir had been accorded special status under article 370 of the constitution. All the provision of constitution which was applicable to all states was not applicable to Jammu and Kashmir. Hence Jammu and Kashmir was enjoying special status under this article which is now abrogated and all the provisions are now equally implemented on Jammu and Kashmir as implemented on other states.
History of article 370
At the time when we fought war for our independence and when divisions and combinations of different states took place then at that time, after Jammu and Kashmir accession, national conference leader sheikh Abdullah took over reins from Dogra ruler maharaja Hari Singh and in 1949, he negotiated the state’s political relationship with New Delhi, which led to inclusion of this temporary article titled article 370 of the constitution.
Sheikh Abdullah has argued that the article 370 should not be under temporary provision, he asked to make this provision a permanent provision so that Jammu and Kashmir never lost its autonomous status which was granted by this article. He want iron clad autonomy for the state , which the centre did not comply with and finally this article was placed into temporary provisions of the constitution.
Provisions of article 370
According to this article, parliament needs the concurrence of the state government i.e; jammu and Kashmir’s government is required before implementing any law or provision in that state except for the matters of defence, foreign affairs, finance and communications whereas on other states parliament can directly implement laws before making any concurrence with the state government. Thus the residents of Jammu and Kashmir lived under a separate sets of laws, including those related to citizenship, ownership of property and fundamental rights as compared to other Indians.
Due to this provision, no other person of any other state can purchase land or any other property in the state of Jammu and Kashmir.
Article 35A stems from article 370, having been introduced through a presidential order in 1954 which was issued by President Rajendra Prasad. Article 35A allows the Jammu and Kashmir legislature to define the permanent residents of the state.
When the Jammu and Kashmir adopted constitution in 1956, it defined permanent resident as someone who was a state subject on may 14,1954 or who has been a resident of the state for 10 years, and has lawfully acquired immovable property.
So under this clause, no outsider can own property in Jammu and Kashmir or get a state job.
This article defines procedure for the removal or abrogation of article 370.
Article 370(3) states that the president may, by public notification, declare that this article shall cease to be operative or shall be operative or shall be operative only with such exceptions and modification and from such date as he may specify.
Provided that the recommendation of the constituent assembly of the state referred to in clause (2) shall be necessary before the president issues such a notification. Here it was said that provision of this article may be repealed or modified by the president of India with the recommendation of constituent assembly of the state referred in clause(2). It means that constituent assembly had a vital role to play. Amendment in article 370 is possible on recommendation of constituent assembly was dissolved in 1956, so currently it does not exist.
That’s why we can’t use article 370(3) to abrogate article 370.
Abrogation of article 370
The president instead of issuing a presidential order under article 370(3) has now a issued a presidential order under article 370(1).
By the way of the same, article 367 has been amended (the amendment to article 367 lays down in interpretation rules for provisions in the constitution pertaining to Jammu and Kashmir) and by way of the said amendment, a new clause i.e; article 367(4) has been introduced due to which the reference to constituent assembly in article 370(3) has been replaced by legislative assembly.
This now enables the president to repeal the provision with the concurrence of the legislative assembly of Jammu and Kashmir.
But the presidential order when issued on August 5 (on abrogation of article 370) the state was under presidential rule at that time.
So due to presidential rule, the concurrence of state legislative assembly effectively meant the concurrence of the governor.
Hence, according to article 370(3), the presidential order was thus made with the concurrence of the governor of Jammu and Kashmir and article 370 was ceased.
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