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Article 370
August 9 , 2019
1850 days
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- Union Minister for Home Affairs introduced two statutory resolutions regarding Article 370 in Rajya Sabha on August 05, 2019. They were passed by Lok Sabha on August 06, 2019. The resolutions are
- Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} – issued by President of India to supersede the 1954 order related to Article 370.
- Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}
The 1954 order
- The 1954 presidential order constituted a founding legal document for Jammu and Kashmir.
- The Constitution (Application to Jammu and Kashmir) Order, 1954, lists the Articles and provisions that apply to J&K.
- By virtue of this order Jammu and Kashmir enjoyed special status under Article 370 of the Constitution of India.
- This Article describes it as a temporary provision and that it will cease to be operative if the President issues a public notification to that effect.
- Article 370 enabled a separate Constitution for J and K and all laws made by Parliament would not be automatically applicable there except without concurrence from State Government.
- These special measures can be altered only on the recommendation of the Sadar-i-Riyasat of Jammu and Kashmir (King), acting on the advice of the Council of Ministers, or by the “Constituent Assembly” of that State.
Article 35 A
- In 1954, the President also listed a set of exceptions under Article 35A of the Constitution (this Article does not figure in the text of the Constitution of India, but figures only in the J&K’s Constitution).
- It was inserted by the Presidential order in 1954 not by Constitutional Amendment.
- It protected the exclusive laws of the state like
- The bar on outsiders buying property
- Kashmiri Women marrying non-Kashmiris losing their property rights
The 2019 Order
- President Ram Nath Kovind has issued a presidential order under Article 370 (1) of the Constitution.
- This clause enables the President to specify the matters which are applicable to Jammu and Kashmir.
- As it can be issued only with the J & K government’s concurrence, the notification uses the words “with the concurrence of the Government of the State of Jammu and Kashmir”.
- Since the State is under President’s rule and administered by Governor, the governor has given his concurrence on behalf of the State government.
- The Order supersedes the 1954 Order.
- This effectively means that all the provisions that formed the basis of a separate “Constitution” for Jammu and Kashmir stand abrogated.
- The Order declares that all the provisions of the Constitution of India, shall apply to Jammu and Kashmir too.
Special measures to support 2019 Order
- A few clauses were added to the Article 367 of the Constitution. Article 367 contains “Interpretations”.
- All references to the ‘Sadar-i-Riyasat’ acting on the aid and advice of the Council of Ministers, will be considered as referring to “Governor” of the State.
- All references to the State government shall mean “the Governor”.
- Article 370 (3) says that the President can declare that Article 370 is no more operative only on the recommendation of the Constituent Assembly.
- The reference to the “Constituent Assembly” has been amended to read “Legislative Assembly of the State”.
- Since there is no State Assembly also now, Governor plays the role.
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