Special Autonomy To State Of Jammu And Kashmir Under Article 370 In Legal Dichotomy
Post on 18,June 2017   5:00 AM
By - PolyEyes Staff
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Recently a statement by Mehbooba Mufti rebuking those acting to weaken Article 370 as anti-nationals, has faced a lot of upheaval and criticism.

What is Article 370 and 35A: Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it a special autonomy except for defence, foreign affairs, finance and communications, the Parliament needs the state government's concurrence for applying all other laws.

Article 35A gives special rights and privileges to permanent residents of J&K, and empowers its legislature to frame any law without attracting a challenge on grounds of violating the right to equality of people from other states or any other right under the Indian Constitution.

The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganized, shall not apply to the state of Jammu and Kashmir.

The State's Constituent Assembly was empowered to recommend the articles of the Indian constitution to be applied to the state or to abrogate the Article 370 altogether.

After the state Constituent Assembly has dissolved itself without recommending abrogation, the Article 370 was deemed to have become a permanent feature of the Indian Constitution.

Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary, Transitional and Special Provisions

What does Special Status to J&K implies legally?

Legislative provisions: The state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

Emergency Provisions:

  • The Union government cannot declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
  • Centre can declare emergency in the state only in case of war or external aggression
  • The Center has no power to declare financial emergency under Article 360 in the state.

Other: Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.

Related legal trifles: Article 370, Article 35A and other aspects of J&K’s special status have been challenged in four important cases in the Supreme Court and two in the Delhi High Court.

Jammu and Kashmir High Court (in Oct 2015) had ruled that Article 370 has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

The Supreme Court said that only Parliament can take a call on scrapping Article 370 that accords special autonomous status to Jammu and Kashmir.However, the Supreme Court in a fresh appeal in November, 2016 has given consent to examine the inviolability attached to Article 370.

Provisions for revoking article 370: According to the clause 3 of Article 370, “The President may, by public notification, declare that this article shall cease to be operative, ‘provided that he receives the “recommendation of the Constituent Assembly of the State (Kashmir).”Thus, Article 370 can be revoked only if a new Constituent Assembly of Kashmir recommends revocation.

Since the last Constituent Assembly was dissolved in January 1957 after it completed the task of framing the state’s Constitution, so if the Parliament agrees to scrap Article 370, a fresh constituent Assembly will have to be formed.

The constituent Assembly will consist of the same MLAs elected to the State Assembly. Concluding that the Centre single handedly cannot repeal Article 370 without the nod of J&K State.

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