GD TOPIC – ARTICLE 370

DETAILS
The Article 370 came into effect in 1949 according to which the state of Jammu and
Kashmir enjoyed a special status until 5 th August 2019. In simple terms, the people of
J&K lived under separate laws and enjoyed autonomy in all areas except defense, foreign
affairs, finance and communication.
Further in 1957, Article 35A was inserted though the Constitution (Application to
Jammu and Kashmir) Order by the then President of India, Dr. Rajendra Prasad.
According to which no outsider was allowed to own property or get a state job in J&K.

CURRENT SITUATION
This decision has garnered a lot of criticism by a large section of general population and
the opposition. There have been mass protests organized in different cities in India in the
last few months. Some have been in support of it and some opposing it. The current Modi
government has been criticized at a national and global level on the way the changes
were implemented. It is considered as a hazard to the human rights.
Major leaders of the popular political parties were house arrested. Internet and telephone
services were revoked. Heavy troops were deployed all across the streets to curb any
unrest or protests. Public movements were banned and schools and offices were shut.
Such steps are considered an outright threat to the democracy. With no direct
communication with the local residents of the Valley, the Government clearly denies any
protests took place. However, certain media outlets have confirmed that there have been
protests. Also, forceful arrests are being taken to infuse fear in the locals so that no unrest
outbreak.
For almost four months Kashmir was completely cutoff with the rest of the world.
Gradually schools, shops and offices have opened. The internet services still remain
suspended in the Valley.
GOVERNMENTS TAKE
The current Government believes to have corrected the historical blunder. It urges it was
necessary to scrap Article 370 to integrate Kashmir with the rest of the country. The
government aims to restore peace, curb corruption and enable growth in the Valley with
this step. But only time will tell the implications of this decision.

DESCRIPTION
According to article 370, the provisions of only Article 1 and Article 370 applied to the
state. If the Centre wanted to extend in the state a central law on subjects included in the
Instrument of Accession (IOA) — Defense, External Affairs and Communications — it
needed “consultation” while for extending laws on remaining subjects, “concurrence” of
the state government was mandatory.
The IOA signed on October 26, 1947 by the then ruler Raja Hari Singh had mentioned in
Clause 5 that accession terms cannot be varied by any amendment of the Act or of Indian
Independence Act unless such amendment is accepted by him by a supplementary
instrument.
Article 35A of the Indian Constitution, which stemmed out of Article 370, gave powers
to the Jammu and Kashmir Assembly to define permanent residents of the state, their
special rights and privileges.
The Jammu and Kashmir Constitution adopted on November 17, 1956 defines a
‘permanent resident’ as a person who was a state subject as of May 14, 1954, or has been
a resident in the state for 10 years on that date, with a legally acquired property.
Non-permanent residents cannot acquire immovable property, get government
employment, scholarships or other aid provided by the state government. The unique
Article was inserted in the Constitution through a Presidential order in 1954 instead of an
Amendment moved through Parliament. Article 35A does not appear in the main body of
the Constitution and is listed in Appendix I.
Clause (J) of the Appendix states after Article 35, a new Article 35A shall be added.
Article 35A states: Saving of laws with respect to permanent residents and their rights —
Notwithstanding anything contained in this Constitution, no existing law in force in the
State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the
State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State
of Jammu and Kashmir or
(b) conferring on such permanent residents any special rights and privileges or imposing
upon other persons any restrictions as respects —
(i) employment under the State Government
(ii) acquisition of immovable property in the State
(iii) settlement in the State;
(iv) right to scholarships and such other forms of aid as the State Government may
provide, shall be void on the ground that it is inconsistent with or takes away or abridges
any rights conferred on the other citizens of India by any provision of this Part.
The premise of this special Article emanates from residency laws issued by the then
Maharaja Hari Singh to prevent migration of people from neighboring Punjab during the
British rule. Such restrictions on non-permanent residents to purchase lands are not
unique to Jammu and Kashmir as Himachal Pradesh and several North Eastern states to
have this provision.
In 2002, the Jammu and Kashmir High Court had struck down the provision of women
losing their permanent resident status if they married a non-permanent resident. Their
children still cannot have succession rights. Article 35A is under challenge in the
Supreme Court as it was not added through a Constitutional amendment and other related
issues.
Under Article 370(3): Notwithstanding anything in the foregoing provisions of this
article, the President may, by public notification, declare that this article shall cease to be
operative or shall be operative only with such exceptions and modifications and from
such date as he may specify: Provided that the recommendation of the Constituent
Assembly of the State referred to in clause shall be necessary before the President issues
such a notification.
In the State bank of India vs Santosh Gupta and Others case, the Supreme Court had
ruled that Article 370, though was intended to be temporary or transitional, has become a
permanent feature of the Constitution for the reasons mentioned in Article 370(3) that
says that without recommendations of the State Constituent Assembly, it could not be
abrogated.
The notification issued by President Ram Nath Kovind abrogating Article 370 on
Monday declared: in provision to clause of article 370 of this Constitution, the expression
“Constituent Assembly of the State referred to in clause shall read “Legislative Assembly
of the State”.
Article 370 protected the state's demographic character
Kashmir is India's only Muslim majority state. "GOIs intention is clear & sinister. They
want to change demography of the only Muslim majority state in India, disempower
Muslims to the extent where they become second class citizens in their own state," Mufti
tweeted earlier on Monday. She went as far as to call the abrogation "another partition
along communal lines".
But that is a sentiment echoed by many in the state - the abrogation of Article 370, and by
extension Article 35A, is seen to open the floodgates so as to speak, enabling Hindus
from other parts of India to migrate to the state and thus engineer a demographic
transformation.

Legislative powers
J&K Assembly will no longer be in a position to clear any significant bills within the
state - the balance of power will shift in favor of the Union government. Significantly, in
the absence of an elected government in the state the presidential order reportedly states
that the state's governor shall exercise the powers of the elected government.

Preferential employment opportunities

Under Article 35A no outsider could bag a government job. Companies in the state were
even forced to hire only locals. The revoking of this rule intends to level the playing field.
In a blog post in March, BJP stalwart and former Finance Minister Arun Jaitley had
claimed that Article 35A crippled J&K's ability to raise financial resources - despite not
having enough of it - and denied its people a booming economy, economic activity and
jobs. "No investor is willing to set up an industry, hotel, private educational institutions
or private hospitals since he can neither buy land or property nor can his executives do
so.  Their ward cannot get government jobs or admission to colleges.  Today, there are no
major national or international chains which have set up hotel in a tourism-centric State.
This prevents enrichment, resource generation and job creation," he penned.
Right to protect its state borders
J&K's special status had thus far shielded it from the applicability of Article 3, which
provides for re-drawing state boundaries or the creation of a new state. The bifurcation
of the state of Jammu and Kashmir into two Union Territories (UTs) - Ladakh and J&K - is
hence pinned to the abrogation of Article 370. "Keeping in view the prevailing internal
security situation, fueled by cross border terrorism in the existing state of Jammu and
Kashmir, a separate Union Territory for Jammu and Kashmir is being created. The Union
Territory of Jammu and Kashmir will be with legislature," Shah announced in Rajya
Sabha. He added that this has been a long pending demand of people of Ladakh.
Of course, there are some Kashmiris who are celebrating the government's decision.
The iArticle, also referred to as the Permanent Residents Law, had thus far barred a
woman (belonging to the state) from any property rights if she marries a person from
outside the state. The provision also extended to the children of such women as they do
not have any succession rights over the property. The revoking of Article 370 ends the
age-old discrimination against women of J&K who chose to marry outsiders.