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Article 370: Special Status and its Abrogation

Article 370 is a special provision with regards to J&K, which lays down specific laws to manipulate certain aspects of the state temporarily. The foremost vital side of this provision is that it's a “temporary provision”. According to the instrument, the matters relating to defense, external affairs, communications, offenses against laws and inquiries and statistics regarding with the sooner mentioned matters and jurisdiction as well as powers of all courts with respect to above-mentioned matters, shall be matters that shall be beneath the purview of the Indian legislature or the dominion legislature and in such matters, it shall have the facility to form laws.


The entirety of Article 370 can be repealed by Article 370 (3) but it requires the recommendation from the Constituent Assembly of Jammu and Kashmir. However, since the assembly was dissolved without recommending the abrogation of Article 370, it has been upheld by the High Court of Jammu and Kashmir and the Supreme Court of India[1] that the article will continue to be in force and has affectively acquired a permanent status in the Constitution of India.


But, The President of India issued an order, on the 5th of August 2019. The order stipulates that, with the Concurrence of the Government of State of J&K, all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir. Moreover, since the government could not directly rely on article 370(3) to abrogate other articles, it sought to use its powers under Article 370(1) to amend article 367, the interpretation clause of the Constitution, so that references to “Government of the State [Jammu and Kashmir]” in article 370 would be construed as the governor of Jammu and Kashmir (§ 2), and the expression “Constituent Assembly of the State” in article 370(3) will be read as referring to the current legislative assembly of Kashmir. The order also stipulates that it will “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954,” effectively abrogating article 35A as well, [2] which granted the permanent residents of the State with some special rights & privileges, and in the course of that Jammu and Kashmir will be treated as union territories of India.


On the very same day, a Statutory Resolution was passed by the Parliament to abrogate most of the parts of Article 370, The President implemented the same and revoked the Special Status which was granted to the state of J&K, therefore, all the provisions of The Indian Constitution will now be applicable to the State of J&K as it is applicable to all the states within the territory of India. The Parliament also passed an act,[3] to reorganize the state into two UTs i.e. one being Jammu and Kashmir which will have a legislature and the other being Ladakh which will be without any legislature. The same had been carried out for the economic and development and growth of the State. There is still doubt on the applicability of the said article as article 370(1) (c) prevents The President from using his power of amendment in the Constitution to amend article 370 itself, even if it is done indirectly. The normal amendment procedure under article 368 would have to be utilized. Art. 370 is nothing but a hurdle and its removal will benefit India and the people of Jammu and Kashmir from every direction.

[1] State bank of India v. Santosh Gupta and Other, AIR 2016 SC 121. [2] The Constitution (Application to Jammu and Kashmir) Order, 2019. [3] The Jammu and Kashmir Reorganisation Act, 2019.

ABOUT THE AUTHOR

Kavya Arora is currently a 3rd-year B.B.A.LL.B(Hons.) student at School of Law, UPES, Dehradun.

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