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What is Article 370
Article 370, which came into existence in October 1949, gave Kashmir its autonomy in the matters of internal administration, permitting it to make its regulations in all matters except foreign affairs, finance, defence, and communications.
The Indian-administered region founded a separate constitution and a different flag and denied property privileges in the state to outsiders. Article 35A, a further provision added to Article 370 of 1954, enabled state legislators to guarantee unique rights and privileges for permanent state occupants.
Latest Update on Article 370
With the revocation of Article 370, Article 35A was likewise scrapped, permitting non-Kashmiris to buy property in the area which has raised fears of India attempting to engineer a "demographic shift" in the Muslim-majority province. In 2019, the Modi government divided Kashmir into two parts: Jammu and Kashmir in the west and Ladakh in the east, both of which would be under direct control of New Delhi. Kashmir lost its flag, criminal code, and constitution guaranteed by Article 370.
No regional elections have been held in the two divisions from that point forward, however, the Supreme Court ordered Indian-administered Kashmir to conduct local legislative elections by September 30, 2024.
Supreme Court’s verdict on scrapping of Article 370
The Supreme Court in its ruling stated Jammu and Kashmir must be reestablished to a similar statehood as any other Indian state with no individual autonomy rights - "at the earliest and as soon as possible".
The five-judge constitution bench of the Supreme Court stated that the region’s special status had been a "temporary provision" and eliminating it in 2019 was constitutionally valid. "Article 370 was an interim arrangement due to war conditions in the state," Chief Justice of India, DY Chandrachud expressed, referring to the Indian Constitution provision that granted a special status to the Muslim-majority Jammu & Kashmir, originally signed with India by the then Hindu ruler who had consented to an arrangement in 1947 to join India
Centre's defence in abrogation of Article 370
The Centre had stated that there was no "constitutional fraud" in dissolving the provision that agreed on the exceptional status of the erstwhile state of Jammu and Kashmir. Additionally, it stated that the law was holding back the region's growth.
The Union government had shielded itself by referring to the reduction in militancy, stone-pelting occurrences, and casualties among the security personnel after the Article 370 abrogation.
History
As a feature of the Instrument of Accession, India permitted Kashmir to hold its constitution, flag, and criminal code. Kashmir had its prime minister and president until 1953 when New Delhi imprisoned its Prime Minister, Sheikh Abdullah, abolishing the post, attempting to further integrate the Muslim-majority region with the rest of India.
Kashmir has been at the core of over 75 years of animosity between India and Pakistan. Pakistan lays its own claim on Kashmir, saying the Muslim-majority region should have been a part of the newly-created Pakistan, in 1947, when British colonial rule ended with the partition of the Indian subcontinent.
The first war over Kashmir broke out immediately after partition and finished in 1949 with a Unified Nations ceasefire that partitioned Kashmir into Pakistan-and Indian-administered territories.
Jammu and Kashmir: Autonomy Structure and Restrictions
India's constitution is a federal form. The subjects for legislation are partitioned into a 'Union List', a 'State List', and a 'Concurrent List'. The Union List of 96 subjects, including defence, commercial issues like banking, military and foreign affairs, major transport systems, stock exchanges and taxes are accommodated for the Union government to legislate exclusively.
The State List of 66 items covering prisons, agriculture, industries, and certain taxes, are accessible for States to legislate on. The Concurrent List, on which both the Centre and States might legislate incorporates criminal law, trade unions, marriage, bankruptcy, professions, and price control. Union legislation takes precedence in the event of conflict.
The 'residual power', to build laws on issues not determined in the Constitution, rests with the Union. The Union may likewise determine specific industries, waterways, ports and so on to be 'national', in which they become Union subjects.
On account of Jammu and Kashmir, the 'Union List' and the 'Concurrent List' were at first restricted to the issues surrendered in the Instrument of Accession; afterward, they were stretched out with the concurrence of the State Government. The 'residual powers' kept on resting with the State as opposed to the Union.
As per the State Autonomy Committee, 94 of the 97 things in the Union List applied to Jammu and Kashmir; the Central Bureau of Intelligence and Investigation and preventive detention provisions didn't matter. Of the 'Concurrent List', 26 of the 47 things applied to Jammu and Kashmir; the things of marriage and separation, babies and minors, transfer of property other than agricultural land, contracts and torts, family planning, bankruptcy, trusts, courts and charities had been omitted i.e., the State had a restrictive right to legislate on those matters. The right to legislate on elections to state bodies is additionally rested with the State.
Article 370 on Jammu and Kashmir: Applicability to the Indian law
Acts passed by the Indian Parliament have reached out to Jammu and Kashmir for some time.
- All India Services Act
- Negotiable Instruments Act
- The Central Goods and Services Tax Act, 2017
- Integrated Goods and Services Tax Act, 2017
- The Central Laws (Extension to Jammu and Kashmir) Act, 1956
- Border Security Force Act
- Central Vigilance Commission Act
- Essential Commodities Act
- Haj Committee Act
- Income Tax Act
- The non-applicability of the National Human Rights Commission (NHRC) Act by claiming recourse to Article 370 was set aside in 2010
- The Central Laws (Extension to Jammu and Kashmir) Act, 1968.
Centre on Article 370 and Jammu and Kashmir in 2019
On 5 August 2019, Indian Home Minister Amit Shah presented the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha to change Jammu and Kashmir's status as a state to two separate union territories, specifically Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to have a legislature under the bill while the union territory of Ladakh is proposed to not have one.
Before the day was over, the bill was passed by Rajya Sabha with 125 votes in support of it and 61 against (67%). The next day, the bill was passed by the Lok Sabha with 370 votes in support of it and 70 against it (84%). The bill turned into an Act after it was signed by the president.
National Unity Day was observed on October 31, 2019, the day the two union territories were established. The president of India designated a Lt. Governor for the Union Territory of Jammu and Kashmir and a Lt. Governor for the Union Territory of Ladakh. Both Lieutenant Governors on October 31, 2019, were sworn in by Chief Justice of the Jammu and Kashmir High Court, Justice Gita Mittal, first in Leh for the UT of Ladakh and then in Srinagar for the UT of Jammu and Kashmir.
President's Rule under article 356 of the Constitution of India was ended in the state of Jammu and Kashmir on the evening of 30 October 2019. A union territory is already under the control of the central government, so the President's Rule is not required there. The President issued the order expressing that he would rule the union territory of Jammu and Kashmir directly until the legislative assembly is established in the union territory.