Syllabus:
GS2: Indian Constitution, Government Policies & Intervention, Federalism, Parliament
Source:
The Hindu (Data Point) – 1/08/23
Context:
- The Supreme Court of India will begin hearing oral arguments in the case concerning Article 370 of the Constitution.
Content
- Till 2019, the erstwhile State of Jammu and Kashmir had its own constitution and thus enjoyed a special status by virtue of Article 370 of the Constitution of India.
- In 2019, this special status was abolished by a presidential order known as “The Constitution (Application to Jammu and Kashmir) Order, 2019”.
- The 2019 order extended all the provisions of the Constitution of India to Jammu and Kashmir also.
- Further, the Jammu and Kashmir Reorganisation Act, 2019, bifurcated the erstwhile State of Jammu and Kashmir into two separate union territories, namely, the union territory of Jammu & Kashmir and the union territory of Ladakh.
How Article 367 was used for the abrogation of Article 370?
- The abrogation of Article 370 of the Indian Constitution, which granted special status to the state of Jammu and Kashmir, was carried out by the Indian government in August 2019.
Here is a detailed step-by-step process of how it happened:
- The government nullified Article 370 through two Presidential Orders.
- The first Order, altered Article 367, which pertains to the interpretation of the Constitution. It stated that the term ‘Constituent Assembly’ in Article 370 would be interpreted as the ‘Legislative Assembly’ of the State.
- At that time, Jammu and Kashmir was under President’s Rule, meaning that its Legislative Assembly and Governor were replaced by the Union Parliament and the President.
- As a result, the State’s ‘Legislative Assembly’ was the Union Parliament. This meant that the President could change or revoke Article 370 at the request of the Parliament.
- Following this Order, both Houses of Parliament passed a Statutory Resolution recommending the dissolution of Article 370.
- After that the President issued a second Order stating that Article 370 was no longer in effect and that Jammu and Kashmir was now part of the Union of India.
Changes before and after abrogation of Article 370
| Before | After |
| State had its own flag | Indian national flag prevails |
| Right to Information Act and Rights to Education were not applicable. | The Right to Information Act and Rights to Education are now applicable. |
| State Assembly tenure – 6 yrs | Union territory Assembly tenure – 5yrs |
| Non residents could not buy immovable property and acquire land | Anyone can buy property in Kashmir |
| Dual citizenship | Single citizenship |
| Kashmiri Women married someone from outside the state could not inherit property. | Women can inherit property even if married outside . |
| Indian Constitution was not fully applicable | Indian Constitution is fully applicable. |
Other related topics
The instrument of Accession
- The Instrument of Accession was a legal agreement introduced by the Government of India Act 1935.
- It was used in 1947 to allow rulers of princely states under British control to join either India or Pakistan after the Partition of British India.
- The agreement covered three main subjects: defence, external affairs, and communications.
- This legal document was executed by Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, on October 26, 1947.
- By executing this document under the provisions of the Indian Independence Act 1947, Maharaja Hari Singh agreed to accede his state to the Dominion of India.
The Doctrine of Colourable Legislation
- The Doctrine of Colourable Legislation is a legal principle that stops a legislature from achieving something indirectly that it is not allowed to do directly.
- If a legislature does not have the power to make laws on a certain subject directly, it cannot do so indirectly either.
- This doctrine checks if a law has been made indirectly on a subject when the legislature is not allowed to make laws on that subject directly.
- Example : If a state government makes a law about public order, (Entry 1 of the State List) that includes deploying armed forces, it would be considered invalid. This is because the power to deploy armed forces belongs to the Central Government according to Entry 2A of the Union List. A court could use the Doctrine of Colourable Legislation to declare the law invalid.
Kashmiriyat, Insaniyat and Jamoohriyat coined by AB Vajpay
- Atal Bihari Vajpayee introduced the doctrine of ‘Insaniyat (humanity), Jamhuriyat (Democracy) and Kashmiriyat (identity of the people of Kashmir)’ to address the Kashmir issue. This became known as the Vajpayee doctrine.
- The main goal of this doctrine was to peacefully resolve all issues with Pakistan, including Jammu and Kashmir, through bilateral dialogue without any third-party intervention.
Pluralistic federalism
- Pluralistic federalism is a system where power is shared between multiple levels of government.
- This approach to governance is multi-layered and pluralistic, with the powers and duties of each level defined by the Constitution.
- The Supreme Court has the authority to resolve conflicts between them.
- Pluralistic federalism allows for the representation of diverse cultures and backgrounds in government.
- The Indian Constitution outlines the structure of the government, including how power is distributed between the central and state governments.
- Legislative powers are divided into three lists: Union, State, and Concurrent, which represent the powers given to the Union government, State governments, and those shared between them.
- Federalism is important in India because it allows for diverse cultures and backgrounds to coexist and be represented in government.
Asymmetric Federalism
- Asymmetric federalism is a system where different states within a federation have varying levels of autonomy, even though they have the same constitutional status.
- This is different from symmetric federalism, where all states have equal autonomy.
- One instance of asymmetric federalism in India was the special status given to Jammu and Kashmir under the Indian Constitution. However, this status was removed in 2019 when the state was split into two Union Territories.
- Another example is the autonomy arrangements for India’s North-eastern region, which were established through constitutional amendments.
Way forward
Addressing the issue of the abrogation of Article 370 would require consultation and dialogue with all parties involved.
- Possible steps could include initiating discussions with stakeholders, restoring statehood to Jammu and Kashmir, promoting economic development and job creation, and ensuring transparency and accountability in governance.