Article 370 and 35A

Government Eradicates Article 370 and 35A in J&K: What All Will Change?

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India has dismissed a law that gives special status to Indian-administered Kashmir among an indeterminate lockdown and heavy troop deployment in the opposed region. Minister of Home Affairs Amit Shah, a close associate of Prime Minister Narendra Modi, informed parliament on Monday that the president had approved a judgment abolishing Article 370 of the constitution, removing the significant sovereignty Kashmir had held for seven decades.

The movement is expected to further aggravate tensions in the Muslim-majority range of more than seven million people and provoke rival Pakistan. The government, led by the Hindu nationalist Bharatiya Janata Party (BJP), also introduced a bill proposing the Jammu and Kashmir state be split into two “union territories” directly controlled by New Delhi.

The Jammu and Kashmir union territory will cover the Hindu-majority Jammu region and will hold a legislative assembly.

All phones, internet services, and cable networks were cast-off on Sunday night and pro-India leaders put under house arrest following days of rising tensions.

What is Article 370?

Incorporated in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (excluding Article 1 and Article 370 itself) and allows the state to recruit its own Constitution. It limits Parliament’s legislative leadership in respect of J&K. For spreading a central law on subjects involved in the Instrument of Accession (IoA), mere “meeting” with the state government is required. But for spreading it to other matters, “concurrence” of the state government is necessary. The IoA came into action when the Indian Independence Act, 1947 split British India into India and Pakistan.

For some 600 sovereign states whose supremacy was restored on Independence, the Act granted for three options: to remain an independent country, follow Dominion of India, or follow Dominion of Pakistan — and this following either of the two countries was to be through an IoA. Though no designated form was provided, a state so joining could define the terms on which it accepted to join. The adage for contracts between states is pacta sunt servanda, i.e. agreements between states must be honored. If there is a breach of agreement, the common rule is that parties are to be returned to the original position.

What is Article 35A?

This provision of the Constitution empowers the Jammu & Kashmir state Assembly to determine who is and is not a “permanent resident” of the state. To further break it down, this plan of the Constitution provides the legislators from Jammu & Kashmir the independent power to decide as to which people in or outside the state will have exclusive rights and privileges conferred by the state.

The provision, interpolated through special Administrative order in 1954, also presents the state Assembly authorities to determine the beneficiaries of state privileges, the authority to acquire land and property in the state, as well as for residing enduringly in the region. Other than this, the legislative Assembly of Jammu & Kashmir can apply the provision to limit rights of any person not listed under “permanent resident” of the state.

What does this signify?

With Indian-administered Kashmir’s exclusive status revoked, people from the rest of India would hold the right to get property in Jammu and Kashmir and live there permanently.

Kashmiris fear the movement would start a demographic alteration of the region from majority-Muslim to majority-Hindu.

“They [the government] have not just scratched down the provision of 370, but they have destroyed the fate of Jammu and Kashmir as it lived in the Indian constitution,”.

“It now consists of union territories which are centrally administered – Ladakh and Jammu and Kashmir. This is a kind of a revolutionary new provision, which many people are saying will need a constitutional amendment,” said Shukla.

 A separate Union Territory will be formulated for Jammu & Kashmir with the legislature, Amit Shah has announced via a notification. “Keeping in view the prevailing domestic security state, fed by cross-border terrorism in the current status of Jammu & Kashmir, a separate Union Territory is being built”, the announcement said.

 Under the information, the Ladakh province is also being given the status of a Union Terrorism, without legislature. “The Ladakh division has a huge area but is sparsely populated with very steep terrain. There has been a long-pending request of people of Ladakh to provide it a Union Territory status to empower them to realize their aspiration”, said Shukla.

Benefits for Kashmiri women

The law was biased against J&K women. It excluded them from their state subject powers if they married non-permanent residents. But in a milestone judgment on October 2002, the J&K high court held that women wedded to non-permanent residents will not lose their rights. But, the children of such ladies don’t have succession rights as of now.

 Article 35A was also claimed by Kashmiri women married to ‘outsiders’ contending that the state’s permanent residency law, emerging from 35A, had disenfranchised their children.

What Kashmiri right will go down?

  • Removing Article 370 will enable the Centre to declare emergency in the state except in case of a battle. Currently, the Union Government requires the concurrence of the state government to even hold a financial emergency in the state under Article 360.
  • Article 35A, which appears under Article 370, forbids non-permanent residents of J&K from permanently living in the state, buying fixed property, taking the land, applying for government jobs or any kind of scholarships, services as well as other public welfare projects. The people of J&K will now won’t be able to use these benefits connected with the permanent resident certificate.
  • The abrogation of Article 370, and by expansion Article 35A, is seen to start the floodgates to talk, allowing Hindus and others from several parts of India to move to the state and settle.
  • J&K Assembly will no longer be in a place to clear any important bills within the state. The stability of power will shift in favor of the Union government. Significantly, in the deficiency of an elected party in the state, the presidential order reportedly declares that the state’s governor shall utilize the powers of the elected government.
  • Under Article 35A no outsider could get a government job. Businesses in the state were even required to hire only locals.

“No investor is ready to set up an enterprise, hotel, private educational foundations or private hospitals since he can neither buy property or assets nor can his officials do so,” says former Finance Minister Arun Jaitley. Now, this status has completely changed.

Mixed Response on Twitter

As soon as Union Home Minister Amit Shah published the proposal in Rajya Sabha, huge chaos was seen as opposition MPs started protesting. A massive eruption was seen on social media as well. As the denials continued in Parliament, mixed responses were observed on Twitter.

Vishwa Hindu Parishad’s Alok Kumar says the government has paid proper respect to the sacrifice of Shyama Prasad Mukherjee and the thousand of social workers. “Today is the day to pay an offering to ten thousands of soldiers who have lost their life for Kashmir since 1947. The strong government has the strength and determination to do what is best. This is a bold move. The government will be observant in Kashmir.

Former Jammu and Kashmir chief minister Mehbooba Mufti

“Today signifies the darkest day in Indian democracy. The decision of J&K power to decline 2 nation theories in 1947 & align with India has failed. The one-sided decision of GOI to reject Article 370 is unconstitutional & illegal which will make India an industrial force in J&K,” she added.

Mufti moreover went on to bang the Government. “GOIs purpose is clear & evil. They want to alter the demography of the only Muslim majority state in India, disempower Muslims to the area where they become second-grade citizens in their state,” she said.

Subramanian Swamy also asserted on Twitter, saying that his theory about Kashmir has been shown right. “So I am proved right. To remove Art 370 we do not need a Democratic Amendment. Amit Shah has however notified Parliament by way of a Declaration what President today has previously notified. Art 370 weakened today. Collaterally so Art 35A,” Swamy said.

BJP leader Sushma Swaraj has also tweeted on the movement. She said, “A strong and historic judgment. We congratulate our Great India – one India.”Delhi Chief Minister Arvind Kejriwal has now embraced the government’s move. “We encourage the govt on its judgments on J & K. We anticipate this will bring harmony and growth in the state,” Kejriwal tweeted.

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