By repealing Article 370 of the constitution, people from the rest of India will now have the right to acquire property in occupied Kashmir and settle there permanently.
Prime Minister Narendra Modi on Monday 5th August 2019 proposed revoking Article 370 of India’s constitution, which confers special rights to permanent residents of Kashmir.
Article 370(3) of the Indian constitution permits revocation of Article 370 by presidential order. However, such an order must be introduced before the state’s Constituent Assembly. Since that body was dissolved in 1957, only a presidential order is sufficient for the revocation.
Gazette notification for the abrogation of Article 370 [ The Constitution (Application to Jammu and Kashmir) Order, 2019] Has been issued on 5th August 2019 in the early morning.
The order said:
“In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir, is pleased to make the following Order:—
- (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
(2) It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.
2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:—
To article 367, there shall be added the following clause, namely:—
“(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir—
(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
Later home minister Amit Shah, made a statement in the Rajya Sabha, said the order was brought under Part 3 of Article 370.
He said .”Rashtrapati sansad ki is sipharish par ghoshana karte hain, ki… jis din Rashtrapati ke dwara is ghoshana pe hastakshar kiye jayenge, isey sarkari gazette mein prakashit kiya jayega, us din se Anuchhed 370 ke sabhi khand laagu nahin honge (The President on the dvice of the Parliament announces that… the day the President signs the order, publishes it in the gazette notification, from that day all sections of Article 370 will cease to be implemented),”
Article 35A of India’s constitution permits the local legislature to define permanent residents of the Kashmir.
Article 35A forbids Indians from outside the state from permanently settling, buying land, holding local government jobs or winning education scholarships in the region. Article 35-A was inserted into the constitution on May 17, 1954, by a presidential order made under Article 370 without the ratification of Constituent Assembly. Article 35-A is a mere executive order under Article 370.
The basic principles committee set up by the Jammu and Kashmir Constituent Assembly presented its report on Feb 3, 1954 with the following recommendations:
“All these fundamental rights should be subject to the overriding condition that:
(i) no law of [J&K] relating to [J&K] subjects to be hereafter called ‘permanent residents’ and regulating their rights and privileges; and (ii) no law hereafter to be made by the [J&K] legislature defining the permanent residents and conferring on them special rights and privileges in relation to acquisition and holding of property in [J&K] or in the matter of employment under [J&K] and imposing restrictions on citizens other than permanent residents for settling within [J&K] should become void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of Constitution of India.”
The article, referred to as the Permanent Residents Law, also bars female including their children, residents of Kashmir from property rights in the event that they marry a person from outside the state.
Two months after India`s independence from British rule in 15th August 1947, Maharaja Hari Singh, the then ruler of Kashmir signed a Treaty of Accession for the state to join with India.
In addition, Home Minister Amit Shah also introduced a Bill bifurcating the State of Jammu of Kashmir into Union Territory of Ladakh and the Union Territory of Jammu and Kashmir to provide for the reorganisation of the existing State of Jammu and Kashmir and for matters connected therewith or incidental thereto.