Legal Takeaways on Article 370: Jammu and Kashmir will now be ruled by a secular and democratic Constitution

Updated: Aug 06, 2019 1:51 PM

Jammu and Kashmir will be grateful to the present government led by PM Narendra Modi for fully fastening and restoring its ties with secular India and permanently dashing any hopes of theocratic Pakistan from having any kind of dominion over it.

The Union Territory of Jammu and Kashmir is, as far as laws are concerned, similar as well as fully homogeneous to the rest of the country. (PTI Photo)The Union Territory of Jammu and Kashmir is, as far as laws are concerned, similar as well as fully homogeneous to the rest of the country. (PTI Photo)

By Alangad Raghunath

Mark the date. August 05, 2019 will be etched in golden letters as a historic day in India’s history when the Parliament of India legislated to end the special status given to Jammu & Kashmir. This has effectively neutered Article 370 of the Constitution of India, which gave, as it were, a special status to Jammu and Kashmir, which up till now was a state within the Indian Union. Simultaneously, the borders of the State were also re-drawn by carving out Ladakh as a Union Territory with no legislature. The rest of the state has also been declared as a separate Union Territory, but with a legislature.

What this means effectively is that Article 370 which gave the power to enact special laws to the state as well as the power to stop laws applicable to the rest of India from applying to the state, are now effectively done away with.

It is pertinent to know that the central government effectively emasculated Article 370 by using the Article itself. Sub-article 3 of Article 370 vested the President of India (in effect the Union Government) with the powers to abrogate the entire Article by a mere public notification which has to declare that the Article shall cease to operate.

The proviso to Sub- Article 3 of Article 370 required that such a notification should be based on the recommendation of the Constituent Assembly of the state of Jammu and Kashmir. This requirement under the above proviso was, to all intents and purposes, carried out through the Governor, as the state was under his rule with the Constituent Assembly having been dissolved a few months before. Therefore, the requirement of the Constitution on Article 370 was fully complied with and observed, both in letter and in spirit.

The Union Territory of Jammu and Kashmir is, as far as laws are concerned, similar as well as fully homogeneous to the rest of the country. The fundamental rights enshrined in Part III of the Constitution of India, the Indian Penal Code, the laws relating to property rights, inheritance laws etc are all applicable to the Union Territory of Jammu and Kashmir which hitherto was not applicable. Shorn of legal jargon, this means that from today, Jammu and Kashmir, which up till now was fastened to the Indian Union by a thread, is now fully intertwined with the rest of India.

The proviso to Sub- Article 3 of Article 370 required that such a notification should be based on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir. This requirement under the above proviso was, to all intents and purposes, carried out through the Governor as the state was under his rule with the Constituent Assembly having been dissolved a few months before. Therefore, the requirement of the Constitution on Article 370 was fully complied with and observed, both in letter and in spirit.

The central government, by going through the route of a Presidential notification, has also done away with Article 35-A of the Constitution of India, which empowered J&K’s state’s legislature to:

define “permanent residents” of the state

provide special rights and privileges to those permanent residents.

It was added to the Constitution through a Presidential Order, i.e., Constitution (Application to J&K) Order 1954, which had been by the President on 14 May 1954.

As far as the people of Jammu & Kashmir are concerned, not much has changed except that:

they are now fully under a Constitution, famed for its secularism and democratic principles

they will be electing a State Government, similar to all other states of the Indian Union.

They will be governed and administered under laws which are more progressive and egalitarian.

The women of Jammu & Kashmir will have equal rights similar and akin to the women in other parts of India. Up till now, a woman from the State of Jammu & Kashmir lost her dominion status, on marrying a man outside the state. She had to forfeit her inheritance as well as her right to property.

The discriminations mentioned above are not exhaustive but only illustrative.

All in all, the present government deserves great commendation and appreciation for showing the courage and far farsightedness in removing a thorn in the ‘Indian’ flesh. The thorn was lying unattended, without being removed, for the last seven decades.

The proverbial thorn had developed into a festering wound which had made the people of Jammu & Kashmir, desperate and without any jobs or development. No investment, worth mentioning from other parts of India were forthcoming to the state due to its discriminatory land and domicile laws which emanated directly from Article 370 and Article 35 A of the Constitution of India.

Hopefully, in the decades to come, the now Union Territory of Jammu and Kashmir will be grateful to the present government led by PM Narendra Modi for fully fastening and restoring its ties with secular India and to, once and for all, permanently dashing any hopes of theocratic Pakistan from having any kind of dominion over Jammu and Kashmir.

(Alangad Raghunath is Advocate on Record, Supreme Court. Views expressed are the author’s own.)

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