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Evolution Of Article 370 In India

Article 370 of the Indian Constitution discusses the special status of the Jammu and Kashmir state. Article 370 was inserted in Part XXI of the Indian Constitution. Article 370 of the Indian constitution grants special status to the State of Jammu and Kashmir in terms of the application of laws.

However, the exception lies in laws that are related to external affairs and matters related to defence. The state has the power to have its own constitution and a separate flag and to deny property rights in the region to outsiders, which ultimately means that the state's citizens shall live under different laws, rules and regulations than the laws applicable in the Union of India.

History Of Formulation Of Article 370

On 26th October 1947, an Instrument of Accession,1947 was signed between Maharaja Hari Singh and the Government of India. After this, Jammu and Kashmir became part of India.

On 17th October 1949, Article 370 was incorporated into the Constitution of India. Finally, on 26th January 1950 the Constitution of India came into effect, and so did Article 370 of the

Constitution. Article 1 of the Indian Constitution declares Jammu and Kashmir as the State of India. Article 370 of the Indian Constitution talks about the temporary status of Jammu and Kashmir.

The Constitution Of Jammu And Kashmir Came Into Effect

On 14th May 1954, a presidential order named 'The Constitutional Application to Jammu and Kashmir's order, 1954 was passed by Dr. Rajendra Prasad. Article 35 A was included in the Constitution through this presidential order defines "permanent residents" of the state. Next, on 17th November 1957, the constitution of Jammu and Kashmir came into force.

The Constitution of Jammu and Kashmir also entails that Jammu and Kashmir are also an integral part of India.

Instability Of Governance In Jammu And Kashmir

The Armed Forces Special Powers Act, of 1990 was imposed and has been in force since then. In the year 2015, Bhartiya Janta Party (BJP) formulated a government in Jammu and Kashmir in coalition with Peoples Democratic Party (PDP). Later in the year 2016, Mehbooba Mufti was crowned as the Chief Minister of Jammu and Kashmir.

In the year 2018, the alliance between the two parties broke. Therefore, as per Article 92 of the Jammu and Kashmir Constitution, if the machinery of the state is not running properly, then in that scenario, the governor's rule takes over. Hence since June 2018, Governor's rule continued till December 2018. In December 2018, President's rule was imposed on Jammu and Kashmir.

Next in May 2019, BJP won the parliamentary elections and the election manifesto of the BJP clearly states the scrapping of Article 35A and Article 370.

When the Instrument of Accession, 1947 was signed it was proposed that there shall be a special provision for Jammu and Kashmir. In order to fulfil the above requirement, Article 370 was drafted by the Constitution makers while drafting the Indian Constitution. After the Constitution came into force, Article 370 provided a special status to Jammu and Kashmir. It states that all other laws applicable to other parts of India shall not apply to Jammu and Kashmir.

The text of Article 370 mentions it to be a temporary provision. It also further mentions the removal procedure of the Article which clearly states that the President by issuing public order or public notification can state that Article 370 is no more applicable. But, the same can be done only by taking permission from the Constituent Assembly of Jammu and Kashmir.

Why Article 370 Was Not Dissolved Till 2019?

The reason behind this is that the text of Article 370 mentions the President taking permission from the Constituent Assembly of Jammu and Kashmir before releasing the presidential order stating the dissolution of Article 370. However, the Constituent Assembly was already dissolved in the year 1957 after the framing of the Jammu and Kashmir Constitution. Due to this deadlock, the removal of Article 370 was a problematic situation.

Article 35A

On 14th May 1954, a presidential order named 'The Constitutional Application to Jammu and Kashmir's order 1954 was passed by Dr. Rajendra Prasad. Article 35 A was included in the Constitution through this presidential order. Article 35A says that all the laws which other states in India follow shall not be applicable in Jammu and Kashmir. The President, in consultation with the state assembly of Jammu and Kashmir, will decide which laws shall be applicable in Jammu and Kashmir.

Section 35A also decides who can be a permanent resident of Jammu and Kashmir. People considered to be residents of Jammu and Kashmir are given certain special rights and privileges over non-permanent residents.

The text of the article states that:
  1. The People Who Are Subject To The State From 14th May 1954; Or
  2. The People Who Are Living There For 10 Years Or More; Or
  3. The People Who Have Lawfully Acquired Immovable Property There Shall Be Considered Permanent Residents Of Jammu And Kashmir.

How Important Is It To Be A Permanent Resident In Jammu And Kashmir?

The Right to vote in J&K was only available to residents of Jammu and Kashmir. Employment under the state government and acquisition of immovable property are certain privileges that were available to residents of Jammu and Kashmir only.

Why Was There A Need To Abolish Articles 370, And 35A?

The provision was discriminatory to women. The constitution of Jammu and Kashmir basically states that if any Kashmiri woman marries an outsider or a non-Kashmiri, then she will not be able to use her property rights. The provisions also acted as a speed breaker for the development in Jammu and Kashmir because facilities like government jobs, higher education, and land were available only to residents of Jammu and Kashmir. The non-residents were barred from enjoying such facilities.

For Example- any qualified doctor, researcher, or teacher would avoid settling in Jammu and Kashmir due to all these limitations.

Ayushman Bharat Yojana Scheme is a government initiative which provides free medical treatment and consultation by doctors. However, doctors under the Ayushman Bharat Yojana Scheme resist going to Jammu and Kashmir due to such prevailing limitations. This means that such beneficial government schemes remain untouched in Jammu and Kashmir.

Not only this, various revolutionary legislations such as the Right to Information Act, of 2005, various fundamental rights, fundamental duties, Directive Principles of State Policy etc. do also does not apply to Jammu and Kashmir.

Constitution (Application To Jammu And Kashmir) Order, 2019

Finally, on August 5, 2019, the 'Jammu and Kashmir (Reorganisation) Act, 2019', and the 'Constitution (Application to Jammu and Kashmir) Order, 2019' were passed by amending Article 367 of the Indian Constitution.

Using the Presidential power enlisted under Article 370(1)(d) to amend Article 367, the President of India( Ram Nath Kovind) made the Constituent Assembly of Jammu and Kashmir is synonymous with the Legislative Assembly. This meant that the constitutional requirement of taking recommendations from the constituent assembly by the President to abolish Article 370 of the Indian Constitution is now resolved.

And finally, the special status of Jammu and Kashmir which made it a separate part from India no longer exists. Jammu and Kashmir becomes an integral part of India, which means that only the Indian constitution is applicable to the whole of India and there will be only one kind of citizenship provided to all the citizens which is the citizenship of India.

Judiciary On Article 370

In the case of P.L. Lakhanpal Vs. State of Jammu and Kashmir and Union of India (1955), the five-judge bench of the Supreme Court held that the presidential order cannot itself amend article 1 and article 370. The facts of the case resolves around the detention of the accused, to which the court made it very clear that the preventive detention order in Jammu and Kashmir cannot be challenged on grounds of violation of fundamental rights for a period of five years from the directive.

In the case of Prem Nath Kaul v. State of Jammu and Kashmir, the court held that Article 370 is a temporary provision. The Court after deliberately discussing the objective and the historical background behind Article 370 came to the conclusion that the relationship between the State of Jammu and Kashmir and the Union of India should be finally decided by the Constituent Assembly of the Jammu and Kashmir.

The Jammu & Kashmir Preventive Detention Act, 1964 was originally given a five-year timeline. However, its validity was extended for 15 years and then to 10 years by the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1959 and 1964.

Similarly, in the case of Abdul Ghani Vs. State of J&K (1971) a writ petition of habeas corpus was filed before the Supreme Court to challenge the detention made under the Preventive Detentions Act, 1964. It was argued that the said detention is contrary to Part III of the Constitution and violative of their fundamental rights. However, the Court denied relief to the petitioners even if the Act purported was violative of their right enshrined under Article 21 of the Constitution.

The Court in Sampat Prakash Vs. The state of Jammu and Kashmir (1969) denied relief to the petitioner. The Court stated that Article 370 can only be removed by the President on the recommendation of the Constituent Assembly of J&K as stated under Article 370(3).

And since the Constituent Assembly of J&K was dissolved in the year 1957, it showed that the Constituent Assembly of J&K had no intention to ask for revocation of the Article. Moreover, the Court in this case further held that in the light of the proviso to Article 368, the President under Article 370 is required to exercise his powers from time to time in order to bring into effect constitutional amendments in the State of Jammu and Kashmir, under Article 368.

Therefore, by virtue of the aforesaid mechanism, it cannot be said that Article 370 was temporary.

Prior to the year 1965, the Sardar-i-Riyasat was elected head of Jammu and Kashmir. The Constituent Assembly in the 1952 amendment added the term to the explanation clause (1) of Article 370. The amendment substituted the office of Maharaja Hari Singh to Sardar-i-Riyasat. However, the above said amendment was made to Article 370 on basis of the recommendation made by the constituent assembly.

In the case of Mohd. Maqbool Damnoo vs the State Of Jammu And Kashmir (1972), the Supreme Court upheld the validity of Presidential Order 1965 which amended article 367(4)(d) to state that "Sardar-i-Riyasat" used in Article 370 should be read as "Governor". This means that the office of Sardar-i-Riyasat was replaced by the office of the Governor appointed by the Union of India.

The case basically revolves around the constitutional validity of the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967. The petitioners contended that the abovesaid statute is constitutionally invalid as the consent of Sardar-i-Riyasat of Jammu and Kashmir was absent. It was contended by the petitioners that this amounted to an amendment to Article 370 through the backdoor, as the power conferred by Article 370 could not be used to amend Article 370.

However, the Court upheld the Constitutional validity of the 1965 amendment order by stating that the above said amendment is "clarificatory" in nature and did not in any way modify Article 370. With respect to the replacement of the term Governor with Sardar-i-Riyasat, the Court held that Governor acts as the successor to the office of Sardar-i-Riyasat. Hence, the governor has the power to give his assent to the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967.

In the case of State Bank of India v. Santosh Gupta (2017), an appeal was filed challenging the decision of the Jammu and Kashmir High Court, which stated that the provisions of the SARFESI act are not applicable to Jammu and Kashmir since the provisions of the act are in direct conflict with Section 140 of the Transfer of Property Act of Jammu & Kashmir, 1920.

The Supreme Court while examining the applicability of the SARFESI act to Jammu and Kashmir held that the abovesaid act has been passed by the parliament by exercising its power enlisted under Entry 45 of the Union List. Also, through the Presidential order of 1954, Central acts relating to the subject matter of "banking" were extended to Jammu and Kashmir.

Further, the Supreme Court opined that SARFEASI Act has to be read with the Constitutional of India and the Constitution of Jammu and Kashmir. The Constitution of India is superior to the Constitution of Jammu and Kashmir. Lastly, since the expression' ..except the State of Jammu and Kashmir is absent in the provisions of the SARFESI Act, 2002, therefore it confirms that the drafters had the intention to make the provisions of the legislation applicable to the state of Jammu and Kashmir.

Judiciary On Constitution (Application To Jammu And Kashmir) Order, 2019

After the Presidential Order, 2019 several petitions were filed challenging its constitutionality of the Presidential Order, 2019. The five Judge bench led by Justice N.V. Ramana heard the matter on 1 October, to which the court ordered not to add further petitions dealing with the same issue.

On November 9, 2020, the Union of India furnished an affidavit defending its reasoning behind the nullification of Article 370 of the Indian Constitution. The affidavit stated that the removal of Article 370 was necessary since its presence leads to militancy and terrorism by creating a "separatist mindset among the people". Article 370 prompted the people of Jammu and Kashmir in availing the benefits that are commonly available to other citizens of India.

However, the Petitioners contended that the Judicial precedents dealing with the same issue such as Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 were in direct conflict. The Supreme Court of the five-judge bench in the former case held that Article 370 was temporary in nature. However, in the latter case, the bench recognized Article 370 as a permanent provision.

The General Principle of Law states that in case of conflict between the judgements of two benches of the same strength, it is usually referred to as a larger bench.

The court heard arguments on 11,12 December 2019 and 21, 22 and 23 January 2020.

On 2 March 2020, the bench refused to accept the petitioners' contention and said the five-judge bench was the appropriate one to hear the matter.

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