Article 370: All you need to know

The Union Government of India scrapped  Article 370 in Jammu and Kashmir and moved the resolution in Lok Sabha on Tuesday to bifurcate the state into two union territories- Jammu and Kashmir and Ladakh.

The bill was passed in the Upper House through a voice note in Rajya Sabha on Monday. This was preceded by a Cabinet meeting at Prime Minister Narendra Modi’s residence in the morning.

The announcement followed weeks of speculation after Centre took several steps to ensure tight security in the state. On Sunday night restrictions were put on leaders, schools announced shut and internet snapped.

Here is a look at Art 370 and Art 35 A and what it means:

Article 370 of the Constitution grants special status to Jammu and Kashmir, while Article 35A empowers the state legislature to define the state’s “permanent residents” and their special rights and privileges.

What is Article 35A?

Article 35A, which was incorporated in the Constitution by a 1954 Presidential Order, gives special rights and privileges to the citizens of Jammu and Kashmir.

It denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their right over property, also applies to their heirs.

It disallows people from outside the state from buying or owning immovable property there, settle permanently, or avail themselves of state-sponsored scholarship schemes. It also forbids the J-K. government from hiring people, who are non-permanent residents.

What is Article 370?

Article 370 of the Indian Constitution is a “temporary provision” which grants special autonomous status to Jammu and Kashmir. Jammu and Kashmir have been accorded special status under Article 370 under Part XXI of the Constitution, which deals with “Temporary, Transitional and Special provisions”. All the provisions of the Constitution which are applicable to other states are not applicable to J-K

Why and when Article 370 was introduced?

The state of Jammu & Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications.

All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India.

They were also encouraged to set up constituent assemblies for their own states.

However, in May 1949, the rulers and chief ministers of all the states met and agreed that separate constitutions for the states were not necessary.

They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments which were accepted.

The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India.

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State.

Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly.

This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution.

However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370.

Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.

What is the controversy?

Several petitions, including the one filed by NGO We the Citizens, have challenged Article 35A’s legality in the Supreme Court on the grounds that it was never presented before Parliament and was implemented on the President’s orders in 1954.

The provision in Article 35A that grants special rights and privileges to permanent citizens appears in the Constitution as an “appendix”, and not as an amendment.

According to the NGO, Article 35A should be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order and that it was only supposed to be a “temporary provision”. The Article was never presented before Parliament and came into effect immediately.

The Jammu and Kashmir government has contested the petition, saying the President had the power to incorporate a new provision in the Constitution by way of an order.

Several petitions, including those by political parties like the National Conference and the CPI(M), were also filed in the Supreme Court in support of Article 35A that also empowers the state assembly to define “permanent residents” for bestowing special rights and privileges to them.