Heaven on Earth open to all Indians now Article- 370 axed!

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5th August 2019 marks a sensational day in the history of our great nation. Finally, the current government has taken a much needed politically spirited step by chopping off Article- 370 from the Indian Constitution which could well be another important step towards introducing and achieving Uniform Civil Code in the country.

What was Article- 370?

Article- 370 of the Indian Constitution was only initiated as a ‘temporary provision’ in 1954 which guaranteed to allow self-governing status to the state of Jammu and Kashmir which further limited the power of the Indian Parliament to make laws for the state.

Under Part XXI of the Indian Constitution titled “temporary, transitional and special provisions", Article- 370 was designated as only a “temporary provision with respect to the State of Jammu and Kashmir".

Also, Article- 370 enumerates that except for communications, defence and foreign affairs, the Indian Parliament will need the state government's agreement for soliciting all other laws. As a result, the Kashmiri residents lived under distinguished laws, which included laws related to ownership of property, citizenship as well as and the fundamental rights, in contrast to other Indian citizens. Moreover, under 370, there was no power with the Central government to declare financial emergency under Article 360 in J&K. The Centre could only declare emergency in case of an external aggression or during a war.

In addition to J&K, multiple other states but mostly Tribal areas have been granted this unique status. For instance, Arunachal Pradesh, Himachal Pradesh, Nagaland and Andaman & Nicobar Islands. Anyhow, J&K is the only state who’s addition of the state to India is still a matter of conflict between India and Pakistan which is still on the schedule of the United Nations Security Council.

What happens after the revocation?

Now, after the Article- 370 has been scrapped any Indian will be able to buy property and even settle permanently in the valley. Due to this, Kashmiris are in fear as they think this would result to the state's demographic transformation to majority Hindu from majority Muslim.

Apart from this, J&K will now be a separate Union Territory with legislature. This has been done keeping in mind the existing internal security situation, provoked by cross- border terrorism in J&K.

Moreover, Ladakh region has also been given the status of a Union Territory, but without a legislature. The UT of Ladakh will now comprise the districts of Leh and Kargil, on the other hand J&K will be now be UT of J&K. However, the UT of Ladakh won’t have its own legislature, but the UT of J&K will have its separate Legislative Assembly (like in a State to draft laws). Therefore, the 4 Rajya Sabha representatives of the existing state of J&K will now represent the UT of J&K. However, UT of Ladakh won’t have any representatives in Rajya Sabha. In addition, UT of J&K will now have 5 representatives in Lok Sabha and UT of Ladakh will have one representative.

As a result of the Jammu and Kashmir Reorganisation Bill, the current Governor of J&K Sh. Satya Pal Malik will now be designated as the Lieutenant Governor of both the Union Territories.

Is the revocation legal?

As stated in the Indian Constitution, Article- 370 could only be revised/ redesigned in accordance with the "state government" i.e. J&K. Though there has not exactly been a stable state government in J&K for more than one year now.

In June 2018, India inflicted federal rule after the then state government led by the then CM- Mehbooba Mufti, was diminished to a minority. As a result, the Central Government only had to seek Governor’s consent which they did and therefore, no legal or constitutional error can be found in the decision to scrap Article- 370.

The Central Government has been reiterating that it is well within its liberty to bring in the changes and that similar resolutions have been pulled off by Central Governments in the past.

How does this change the Legislative Assembly of J&K?

  • The Legislative Assembly of the UT of J&K will now consist of a total of 107 seats which is 4 less than the number of seats that the state earlier had. Out of these 107 seats, 24 of these seats will still remain vacant as these fall under Pakistan Occupied Kashmir (POK) until Pakistan’s occupation over that area ceases to exist. Therefore, only 83 seats will be available for elections.
  • Also, the Lieutenant Governor may nominate 2 women members if he feels women representation is inadequate.
  • An important headway is that there will be reservations for Scheduled Castes and Scheduled Tribes in the latest Legislative Assembly. This seems to be a part of a comprehensive movement of increasing reservations to the valley which currently applies to the rest of the country.
  • Besides this, an exclusive Bill has also been introduced to extend the 10% quota for economically weaker sections (EWS).
  • Furthermore, members of the new UT of J&K Legislative Assembly will now have a term of 5 years which earlier was 6 years.

How does the new Bill change the structure of Council of Ministers?

  • The UT of J&K will now have a Council of Ministers which will be headed by a Chief Minister who will assist and counsel the Lieutenant Governor.
  • The J&K Reorganisation Bill mentions the following issues where the Lieutenant Governor’s discretion can veto the Assembly: All India Services and the Anti-Corruption Bureau.

How will the new UTs be governed?

  • The Parliament will now have complete powers to make laws for both the UTs of J&K and Ladakh.
  • The UT of J&K’s Legislative Assembly can now draft laws on all issues in the State List of the 7th Schedule of the Indian Constitution (excluding public order and police) and the Concurrent List. Although, some aspects of these, like on laws relating to trade and commerce, are limited for UTs, and these restrictions apply to UT of J&K and UT of Ladakh.
  • The most significant change that the Bill brings about is the application of laws drafted by Centre which is applicable across the rest of India. As a result, the 106 Central Acts mentioned in the 5th schedule to the Bill (for example, the RTI Act) will now be applicable to J&K and the 153 State Acts will now get repealed.

Other significant changes will include:

  1. Applicability of the Indian Penal Code replacing the Kashmir’s Ranbir Penal Code.
  2. Applicability of the Transfer of Property Act, 1882 replacing the local law that has been one of the elementary ingredients of J&K’s special status, as guaranteed by Article- 35A of the Constitution. The new law now allows any Indian to buy property in J&K.
  3. Applicability of the Codified Central personal laws which includes the Hindu Marriage Act will also be applicable along with the Muslim Marriage Act.
  4. Besides this, some specific provisions of the Indian Constitution that were not applicable earlier will now be applicable, for instance, Article- 360 which is declaration of a ‘Financial Emergency’. As a result, President’s Rule can now be directly imposed in the UTs- prior to the new Bill there first had to be a period of Governor’s Rule, and only then could President’s Rule come into place.

 

 Before Axing Article- 370After Axing Article- 370 
1Special powers exercised by J&KNo special powers now
2Dual CitizenshipSingle Citizenship
3No reservation for minoritiesMinorities will be eligible for reservation
4Indian citizens could not buy property in J&K (Article- 35A)Indian citizens eligible to buy property in UT of J&K and UT of Ladakh (Article- 35A axed)
5Article-360 (Financial Emergency) not applicableArticle-360 applicable now
6Article-356 (Central Government taking control when State Government cannot) not applicableArticle-356 applicable now
7Separate Kashmir FlagTricolour Indian Flag
8Right to Information (RTI) was not applicableRTI applicable now
9Duration of Legislative Assembly was 6 yearsAssembly duration in UT of J&K and UT of Ladakh will be 5 years

 

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