The Hindu Editorial Analysis- 1st August 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Why in News?

On August 2, the Supreme Court of India will begin hearing oral arguments in the case concerning Article 370 of the Constitution. The changes made to Article 370 through measures that commenced with a presidential order issued nearly four years ago, on August 5, were, by all accounts, seismic in proportion. Amendments were made to make applicable the entirety of India’s Constitution to Jammu and Kashmir (J&K). The State was also sundered into two Union Territories: J&K and Ladakh.

Historical Background

• The princely state of Jammu and Kashmir acceded to the Dominion of India after Maharaja Hari Singh, the monarch of the princely state of Jammu and Kashmir, signed the Instrument of Accession on October 26, 1947.
• Only Articles 1 and 370 of the Indian Constitution apply to J&K, according to Article 370. Other Articles' application was to be decided by the President in collaboration with the state administration.
• In accordance with the Instrument of Accession, the Constitution Order of 1950 stated the matters on which the Union Parliament would be competent to pass legislation for Jammu & Kashmir - 38 subjects from the Union List were included.

Constitution (Application to Jammu and Kashmir) Order of 1954

The Constitution (Application to Jammu and Kashmir) Order of 1954 established a constitutional link between Jammu & Kashmir and India. The following clauses were included in the agreement:

• The Constitution was amended to include Article 35A. (empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment)
• The Supreme Court of India's jurisdiction has been extended to the state.
• In the case of external aggression, the central government was given the authority to proclaim a national emergency. Only with the approval of the State Government could the power be used in the event of internal unrest.
• The Centre and Jammu & Kashmir's financial connections have been normalized.

Features of Article 370

• Article 370 limits the power of the Parliament to make laws for Jammu and Kashmir.
• Jammu and Kashmir has its own Constitution, apart from the Indian Constitution.
• Its constitution was framed by a Constituent Assembly of its own, adopted on 17th November 1957 and came into force on the 26th January, 1957.

Role of Parliament

• Parliament cannot change the name, boundary or territory of Jammu and Kashmir without the concurrence of the State Legislature.
• Parliament cannot make law with regard to Jammu and Kashmir on subjects in the State List.
• The residuary power lies with the Legislature of Jammu and Kashmir and not with the Parliament.

Citizenship

• It follows dual citizenship. Only the citizens of Jammu and Kashmir can take part in the election to the State Assembly and acquire, own, and dispose of immovable property in Jammu and Kashmir.
• Consultation with State government: Before appointing a person a Governor of Jammu and Kashmir.
• Preventive Detention: No preventive detention law made by the Parliament can have automatic extension to Jammu and Kashmir.

Emergency

• Only a national emergency proclaimed on the ground of war or external aggression shall have an automatic extension to Jammu and Kashmir. A national emergency proclaimed on the basis of armed rebellion shall not be automatically extended to Jammu and Kashmir.
• Apart from the President’s Rule, Governor's rule can also be imposed for a maximum period of six months, in case of a constitutional breakdown in the State.
• The union has no power to proclaim a financial emergency to Jammu and Kashmir.

Reason for Temporary

• The Article was added to address Maharaja Hari Singh's concerns that he would not have acceded to India without certain concessions.
• Post-independence, territorial integrity was a top priority for India, hence a particular provision was included in the constitution.
• However, the provision is part of our constitution's "Temporary, Transitional, and Special Provisions."
• Furthermore, Article 370 might be understood as temporary in the sense that the J&K Constituent Assembly had the authority to change, eliminate, or keep it; it chose to keep it.
• Another view was that the accession was only temporary and would be followed by a vote.

The issue in revoking Article 370

• The constitutional connection between Jammu & Kashmir and the rest of India is founded on Article 370.
• At least 45 times, India has invoked Article 370 to extend the Indian Constitution's provisions to J&K. This is the only method India has effectively neutralised the effect of Jammu & Kashmir's special status through Presidential Orders.
• Almost the entire Constitution, including most constitutional amendments, was extended to Jammu & Kashmir by the 1954 order.
• However, repealing the article in its entirety could jeopardise the state's tranquilly, which is already a hotbed of strife and extremism.
• It will fundamentally alter the state's relationship with the rest of India.
• It will also pave the way for Article 35A to be repealed, allowing Indian residents to buy land and settle permanently in J&K.
• As a result, the decision is likely to have a considerable impact on J&K's demography, culture, and politics.

Current Development

• Until 2019, the former state of Jammu and Kashmir had its own constitution and thus had a special status under Article 370 of the Indian Constitution.
• This special status was repealed in 2019 by a presidential order known as "The Constitution (Application to Jammu and Kashmir) Order, 2019."
• This order superseded the previous "Constitution (Application to Jammu and Kashmir) Order, 1954."
• The 2019 order extended all provisions of the Indian Constitution to Jammu and Kashmir as well.
• However, the inoperative Article 370 remains in the text of the Indian Constitution.
• Furthermore, the Jammu and Kashmir Reorganisation Act, 2019, divided the former state of Jammu and Kashmir into two separate union territories, namely Jammu & Kashmir and Ladakh.
• The union territory of Jammu and Kashmir includes all of the districts of the former state of Jammu and Kashmir, with the exception of Kargil and Leh districts, which have been transferred to the union territory of Ladakh.