Article 370 and Article 35A revoked A new phase in the Indian Constitution

Article 370 and Article 35A revoked: A new phase in the Indian Constitution

It is an exhilaratingly busy phase for the Indian law and policymakers or so it seems.  The ruling government in the Rajya Sabha took a decision to break the shackles that held the independent state of Kashmir from the mainland. In a series of quick turning events, the Hon’ble Home Minister Shri Amit Shah has passed a resolution to revoke the Article 370 and 35A of the Indian Constitution which paves way for the State of Jammu and Kashmir to be a newly formed Union Territory with legislature and Ladakh as an independent union territory without legislature. The well-debated resolution passed will compel the change in High School Geography books curriculum as the Republic of India has 28 states and 9 union territories now!

What is Article 370 and where did it begin?

The BJP led NDA party has been using the revoking of Article 370 as one of their prime election agendas in their manifesto. Attempts were made when the Narendra Modi led party came into power in 2014 but as the very nature of the pact, article 370 could not be amended without State legislature’s recommendations to the President of the Union of India.

After independence, it was debated that the state of Kashmir has not yet evolved or is ready to get integrated with the mainland, hence article 370, which bestowed a temporary issuance of special power to the state of Kashmir, to stay independent in most crucial portfolios. The article 370 was articulated and incorporated into the Indian constitution since the state of Kashmir only wanted to abide by the provisions under the original instrument of accession.

As per this Article, the state of Kashmir will abide by the original Instrument of Accession and only the Indian Laws governing defence, finance, foreign affairs and communications will be confined to the state affairs. Any other law/policies regarding the state where the government of India would want to intervene will be executed only after the concurrence of the State legislature. This was a temporary inscription in the Indian Constitution till the time the state formed its own Constituent Assembly, which was empowered to suggest recommendations for the abrogation of the article. The Constituent Assembly of Jammu and Kashmir was elected in 1951 and the Constitution was adopted on 17 November 1956 and came into force in 26th January 1957. The idea was that the Constituent Assembly had to suggest recommendations or amendments to the article 370 but the assembly dissolved itself on 25th January 1957, enabling the article 370 to gain a status of “forced permanency”. Ever since due to presidential orders and other amendments the article 370 has been diluted and yet its abrogation was always challenged due to its controversial terms of existence.

Article 35A, on the other, demarcated the permanent occupants of the state of Jammu and Kashmir and empowered them with special provisions aided by the Constituent Assembly of the state. This made sure that the Muslim dominated state had no infusion from other states and the idea of buying lands and settling within remained a territorial aspect. Most experts also criticize the article for its violation of the right of women to marry of their choices by not giving the descendants any right to property if the woman does not marry a permanent resident.

BJP with its accomplice RSS have been filing petitions and challenging the above articles since the NDA formed the government in 2014. They claim that their motive to abrogate the controversial Articles 370 and 35A is to re-establish uniformity in legislation and to keep the burning menace of terrorism controlled. Moreover, the state of Jammu and Kashmir was anyway benefitting from the aids from the Central Government with the concurrence of the state.

This major step taken, tensions in the political and administrative arena in Jammu and Kashmir have seen a rise. On the night of August 3, the Central government issued section 144 in Jammu, cutting down the internet, connectivity and placing the former Chief Ministers leaders like Mehbooba Mufti and Omar Abdullah under house arrest. The debate has picked up with the pro-Kashmir groups openly challenging the instant change of fortunes as far as the State of Jammu and Kashmir and Ladakh are concerned. The Indian Army and the Indian Air force have been put on high alert anticipating the rise of opposing forces and riots. 80,000 military personnel have already been deployed in various parts of the state which already has about 500,000 of the armed forces men watching the situation closely.

Only time will say what else will unfold after this historic change in the Indian Constitution today. What do you feel about the revoking of Articles 370 and 35A? Do share your thoughts in the comments section.

Raman Kumar

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