President retains power to scrap Article 370: SC

President retains power to scrap Article 370: SC


On Wednesday, the Supreme Court questioned whether the President would still have the authority to declare ineffective Article 370 of the Constitution, which granted Jammu and Kashmir special status, after the Constituent Assembly of the formerly existing State was dissolved on January 26, 1957.

What is Article 370?

  • The state of Jammu and Kashmir was given special status under Article 370 of the Indian Constitution. It was included as a short-term solution to Part XXI of the Indian Constitution, which is named “Temporary, Transitional and Special Provisions.” 
  • The purpose of Article 370 was to establish a framework for ties between the Indian government and Jammu and Kashmir, a state that joined India in 1947 following its liberation from British rule.

What is the historical background behind the Jammu and Kashmir annexation?

  • Partition of British India: British India was divided into India and Pakistan in August 1947, following its independence from the British Empire. With Pakistan being founded as a country with a majority of Muslims and India having a majority of Hindus, the partition was predicated on religious lines.
  • Accession of Princely States: During the partition, around 500 autonomous princely states—regimes ruled by local sultans—were offered the choice to join either India or Pakistan. Depending on elements like proximity to another country in terms of geography, religious compositions, and the preferences of the king, the princely realms could choose to join either one.
  • The dilemma of the ruler: Jammu and Kashmir was a princely kingdom with a majority-Muslim population that was administered by a Hindu king, which presented a dilemma for Maharaja Hari Singh. Maharaja Hari Singh was hesitant to join either Pakistan or India. He intended to keep his state independent, but he was forced to choose by the political climate and pressure from both India and Pakistan.
  • Tribal Invasion and Instrument of Accession (October 1947): In October 1947, Pakistani tribal forces invaded Jammu and Kashmir, igniting a massive riot and wave of carnage. Maharaja Hari Singh requested Indian military assistance in reaction to the invasion. On October 26, 1947, he formally acceded the state to India by signing the Instrument of Accession. The accession was approved by the Indian government, and Indian forces were sent to defend the country
  • Participation of United Nations: The dispute between India and Pakistan over Jammu and Kashmir prompted the UN to step in. The Line of Control (LoC), which divides the area between territories governed by Pakistan and India, was created in 1949 as a consequence of a UN-mandated truce.
  • Article 370 and Special Status: Jammu and Kashmir are given special status and certain autonomy under Article 370 of the Indian Constitution, which was included to address the delicate nature of the accession and take into account the state’s particular circumstances.

What is Article 35 and what are the provisions?

  • The citizens of the state of Jammu and Kashmir were given unique privileges and rights under Article 35A of the Indian Constitution. It was part of the larger structure that gave Jammu and Kashmir special status under Article 370 and was added to the Constitution through a Presidential Order in 1954.
  • The provinces of Article 35A are as follows:
    • Protection of Laws: The provision guaranteed the preservation of any state laws now in effect that pertain to long-term inhabitants and their legal rights. It made sure that the state government was free from interference from the federal government to define and control the rights and privileges of its citizens.
    • Limitations on Citizenship: Under Article 35A, it was prohibited for those who were not permanent residents of Jammu and Kashmir to become citizens of the state. As a result, they were unable to take advantage of the exclusive rights and benefits accorded to permanent residents.

How was the article altered in the recent past?

  • Presidential Oder: Under the Government of India’s recommendation, the President of India issued a Presidential Order to repeal Article 370 on August 5, 2019. The previous Presidential Order from 1954, which had been extended to the state with the “concurrence” of the state administration, was replaced by this one.
  • Parliament Approval: The resolution was introduced by the Indian government in both the Lok Sabha (House of the People) and the Rajya Sabha (Council of States) of the Indian Parliament at the same time the Presidential Order was issued. In the resolution, the Parliament was asked to approve changing Article 370 and reorganizing Jammu and Kashmir.
  • Reorganization Act: The Jammu and Kashmir Reorganisation Act, 2019, was introduced in Parliament alongside the resolution. The proposal made in this act was to divide the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh.
  • Parliamentary Approval: Both houses of Parliament considered and approved the resolution and the Reorganisation Act. The Reorganisation Act needed to be approved by a simple majority in the Lok Sabha and a special majority in the Rajya Sabha, whereas the resolution only needed a simple majority to be approved.
  • President’s Assent: The resolution and the Reorganisation Act were sent to the president for his signature after being passed by both chambers of parliament. The modification of Article 370 and the division of Jammu and Kashmir into two union territories were put into effect after gaining the President’s approval.

What are the possible issues with removing Article 370?

  • Constitutional and legal challenges: The Indian Supreme Court has heard arguments against the repeal of Article 370. Critics contend that how Article 370 was repealed calls into doubt the constitutionality and legality of the provision.
  • Concerns about Rights: Human rights concerns have been raised by the situation in Jammu and Kashmir, especially in light of the suspension of civil liberties, internet blackouts, and limits on freedom of movement. There have been more civilian casualties and tensions have risen as a result of the region’s tightened security
  • Regional Tensions: As both India and Pakistan assert sovereignty over the entire region of Jammu and Kashmir, tensions between the two nations have increased since Article 370 was repealed. Since the reforms, hostilities along the Line of Control have risen and strained bilateral relations.
  • Political turmoil: In Jammu and Kashmir, the repeal of Article 370 has led to political turmoil. The arrest of political figures and the repression of political dissent have made the political climate in the area even more complex.
  • Impact on the Economy: The decision to repeal Article 370 has an impact on the local economy. The protracted security measures and communication limitations have had an impact on Jammu and Kashmir’s enterprises, tourism, and overall economic activity.
  • Social and Demographic changes: Critics of the abrogation claim that because non-residents can now buy land and settle in Jammu and Kashmir, it may cause social and demographic changes in the area. Concerns have been expressed concerning how to protect the local population’s rights and cultural identity.