Breakdown of Article 370

One of India’s most breathtaking constitutional alterations occurred on August 5, 2019, when Article 370 was abrogated. Through a mix of executive and parliamentary decisions the provision that bestowed a special status to the state of Jammu and Kashmir within the Indian Union was abrogated. This action fundamentally altered the legal framework governing Jammu and Kashmir, transforming it from a state with unique constitutional privileges to two union territories: Jammu, and Kashmir and Ladakh.

This article gives a brief idea about the history of J & K, abrogation process, legal consequences and its present position where a law student in India can get a full view of the legal aspect of this decision.

Provisions of Article 370

Article 370 granted J&K several special privileges, distinguishing it from other states of India:

1. Autonomy and Limited Parliamentary Jurisdiction:

J&K had its own constitution full control over all subject excepting defense, foreign affairs and communications. Otherwise, Parliament could legislate on other matters only with the consent of the state government or the Constituent Assembly.

2. Dual Citizenship:

People of J&K were not treated like citizens of other states in India. They were bearing Indian as well as J&K citizenship; state rules of residence, property and employment were different. Article 35A which emerged from Article 370 strengthened such privileges even further.

3. Temporary Status:

This was because while as it was earlier noted, the rigidity of the integration process was only articulated by Article 370 which was founded as a temporary provision. Article could be abrogated with the permission of J&K Constituent Assembly, after which it was dissolved in 1957 without a recommendation for the repeal of the provision so as to make the same look permanent.

The special position of this state under particular Article No 370 was therefore the sort of equilibrium between strengths of stealing on the one hand and sovereignty of the Indian union on the other hand. For many years, this afforded status used to create political problems and disagreements inside of India, as well as worldwide.

 Article 370 Struck Down: A Brief Constitutional History

Article 370 was incorporated in the Constitution of India in 1949 as a ‘provisional’ measure to govern the contact whereby the Union of India dealt with the state of Jammu and Kashmir. Patronised special status was obtained due to an instrument of accession signed by Maharaja Hari Singh in 1947 when Kashmir decided to join India on certain terms and conditions. These conditions provided the state with exclusive powers with the exceptions of defence and communication as well as foreign affairs.

The rationale behind Article 370 could be understood on historical and political context in Jammu and Kashmir after independence and military struggle with Pakistan. The article provided the right to Jammu and Kashmir to have a constitution, and no law made by the Indian Parliament could come into operation in Jammu and Kashmir without the consent of the state’s legislative assembly.

The Constitutional Framework

Article 370 contained several key features that differentiated Jammu and Kashmir from other Indian states:

Exclusive Legislative Power: Originally the Jammu and Kashmir legislative assembly had a monopoly in making laws that dealt with issues such as residence and property rights. This power was enshrined through the 35A which was inserted by an order of the President in 1954 to limit ownership of property to ‘permanent residents.

Limited Application of Indian Laws: Indeed, the Indian Parliament could make laws in relation to subjects in the Union and Concurrent lists only with the concurrence of the government of the state of Jammu and Kashmir.

Separate Constitution and Flag: Also, the state of Jammu and Kashmir had originally had its own constitution framed by its own Constituent Assembly in 1957 and it could also have its own flag.

However, this special status nurtured another legal architecture whereas like any other Indian state Jammu and Kashmir enjoys much higher level of autonomy which has in turn spurred a perpetual contention over the principles of nationalism and unity with federalism.

Process of Abrogation

The abrogation of Article 370 was carried out through a series of procedural and constitutional steps by the Indian government in 2019:

Presidential Orders:

On the assured ground of paragraph 5 of the Constitution, on 5 August 2019, the President Ram Nath Kovind issued the Constitution (Application to Jammu and Kashmir) Order, 2019, that repealed the 1954 Presidential Order and made all provisions of the constitution applicable in the state of Jammu and Kashmir. This ruled out leading to the eventual abrogation of Article 35A.

Parliamentary Resolutions:

Both houses of Parliament passed a concurrent resolution, the Rajya Sabha on August 5 and the Lok Sabha on August 6, 2019. These resolutions revoked the special provisions granted under Article 370 and reorganized the state into two union territories: That is Jammu and Kashmir, and Ladakh.

Jammu and Kashmir Reorganisation Act, 2019:

This law was approved in the Parliament and for the first time in the history officially divides the state in two parts, decreasing the level of delegation of the region.

Judgement by the Supreme Court on the Scrapping

The revocation of the Article 370 testing the legal compass in the Supreme Court where the judgment came in December 2023. The court, in a 5-0 unanimous judgment, upheld the constitutional validity of the abrogation, emphasizing several key points:

Temporary Nature of Article 370:

Again, the court reminded the people that Article 370 was never permanent in nature at all. The provision was to control the middle term status of the region now Jammu and Kashmir with the Indian Union until a Constituent Assembly was convened to settle its constitutional status. This assembly was dissolved in the year 1957 rendering this provision obsolete over time.

No Internal Sovereignty:

The court said that even though some say that Jammu and Kashmir had internal sovereignty, it was never the case. The apex court held that except Hyderabad, all powers of sovereignty were transferred to the Union of India when the state acceded to India in 1947.

Presidential Authority:

The President of India had the constitutional abilities to make orders with the help of the article 370 and it comprised of the orders which led to the abolishment of the article 370. At the time, the state’s legislative assembly was dissolved so Parliament could take its powers as well.

Implications of the Abrogation for Jammu and Kashmir

The repeal of Article 370 resulted in substantial changes in the governance, legal framework, and socioeconomic landscape of Jammu & Kashmir:

The two basic areas of governance and administrative changes concern the management of the organisation.

The first or the most demonstrable effect of the abrogation was the bureaucratic restructuring of Jammu and Kashmir. Division of the state into two Union Territories—Jammu and Kashmir: having its own legislative assembly and Ladakh: without any legislative assembly seemed to be a drastic change in the overall administrative map of the region. Key administrative changes include:

Lieutenant Governor:

Presently, Jammu and Kashmir and Ladakh are administered by a appointed Lieutenant Governor of the President of India, instead of the Governor of the state in existence earlier.

Application of Central Laws:

All the central laws such as IPC, RTI and RTE etc have been made applicable to Jammu and Kashmir. This brought the curtains down for J&K to have a separate legal system which it had been following the Ranbir Penal Code.

Restoration of Fundamental Rights:

Another of the effects of abrogation was that the inhabitants in Jammu and Kashmir received their complete primary freedoms once again. Earlier Article 35A of the Constitution deprived some rights, including the property rights, from operation. Now all fundamental rights contained in the Constitution of India are available to the people of J&K.

Key Impacts of the Abrogation

The removal of Article 370 has had profound legal, political, and socio-economic effects on Jammu and Kashmir:

National Integration:

By incorporating Jammu and Kashmir into one constitution as the rest of India, the government desired to shape national integration. They became totally dissatisfied with the distinctive status that had set Jammu and Kashmir out from the other administered territories, perceiving it as a blockade to complete integration.

Security and Counterterrorism:

The abrogation has boosted the potency of the central government in the utilization of anti-terror laws like the Unlawful Activities Prevention Act (UAPA) to the region. This was regarded as important in addressing the terrorism issue especially of the transnational nature in a region that has experienced terror related attacks for decades.

Economic Development:

In regard to legal justification, one of the arguments of the government while entrenching article 370 was to encourage investment in Jammu and Kashmir. Earlier, lack of compounding rights under Article 35A had also surpassed outside investments. From the aforementioned restrictions being lifted, the region is now capable of opportunities within economic aspects as tourism, infrastructure and manufacturing.

Implementation of Central Laws:

After the abrogation, many new progressive laws including those relating to education, property rights and affirmative action were brought within the ambit of the territory of Jammu and Kashmir. For example, the New Right to Education and Right to Information Acts were not even applicable earlier

Challenges and Controversies

While the abrogation of Article 370 has been hailed by some as a move towards greater national integration, it has not been without controversy:

Federalism Concerns:

According to the critics, the abrogation violates the Indian federalism because it intrudes into the practical functions of a state without the approval of the state’s legislature. This paved the way to have the central government to alter unilaterally of other states’ status which has a dent on the federal authority of the system.

Political Discontent in Jammu and Kashmir:

Several political players in the region have been against the abrogation as they regard it a betrayal of the relationship between Jammu and Kashmir and the Indian Union. Lately, people have demanded the return of statehood and political self-governance.

Human Rights Issues:

It was preceded by a clamp down on civil liberties and human rights in the region with the banning of political leaders and a communication freeze. These were frowned at both nationally and internationally, but the government justified them as measures necessary for supporting law and order.

Conclusion

The revocation of article 370 has been one of, the Constitutional landmarks for Independent India. In the future, the main strategy of the government is going to remain stability in South Korea: economic advancement, political activity, and security issues. In view of these scenarios the restoration of normalcy in Jammu and Kashmir will depend with how these factors have been addressed, and improvement in the trust deficit between the inhabitants and Delhi centric Centre.

Thus, abrogation of Article 370 is a phenomenal blow to the legal structure of India especially with regard to its policy of integration of States and relationship between Centre and States. From the perspective of law students this revocation is a classic area of learning in constitutional law and federalism subjects focusing on separation of powers in the framework of India legal system.