Decoding the Crutches of the Valley

Decoding the Crutches of the Valley

Date : 05 Aug, 2019

Post By Sankul Nagpal

Since the very inception of HINDUSTAN, the question of the Kashmir valley has been a volatile issue. Time and again, Kashmir has witnessed a political as well a social turmoil over its status while continuing to face constant tension even from across the border.

The question of the valley stands firm upon 2 pillars that are the core of Kashmir itself. These are Articles 370 and 35A of the Indian Constitution.

What is Article 370 of the Indian Constitution?

The provision included in the Constitution of India on 17 October 1949 is a temporary provision which grants autonomous status to Jammu and Kashmir and limits Parliament’s powers to make laws for the state.

Included under Part XXI of the Constitution which is titled as “Temporary, transitional and special provisions", Article 370 is provided as a temporary provision with respect to J&K.

The article allows Jammu and Kashmir’s state constituent assembly to make its own constitution as well as laws, thereby giving it an ‘autonomous status’. Article 370 serves as a mechanism for regulating centre and state relations with specific reference to J&K. Apart from the autonomous status, Article 370 also grants special powers such as the need of “concurrence of the state government” if the central government wishes to make an amendment to the concurrent list of subjects under the Indian Constitution.

The article also lays down that only two articles of the Indian Constitution will be applicable to Jammu and Kashmir i.e. Article 1 which defines India and Article 370.

The ground reality of Article 370

Article 370 has now been an integral part of the valley and is deeply rooted in the political scenario of the State. With the provisions of Article 370, the state's residents live under separate laws, including those related to citizenship, ownership of property and property rights, fundamental rights and other legal rights. The byproduct of this provision is that Indian citizens from other states cannot purchase land or property in J&K.

Further, since Article 370 lays down that parliament will need the state government’s concurrence for applying any new laws like fundamental rights and citizenship which are all a separate law for Jammu and Kashmir.

What is Article 35A of the Indian Constitution?

Article 35A which came into force via a presidential order in 1954, is a subset of Article 370 and is based on it. Article 35A reinforces the special status granted to Jammu and Kashmir.

Article 35A gives the state a right to decide who are its permanent residents and further to give them special rights in government jobs, buying property, scholarships as well as other schemes. Jammu and Kashmir define its permanent residents as "persons born or settled within the state before 1911 or after having lawfully acquired immovable property and resident in the state for not less than 10 years before that date."

The ground reality of Article 35A

In effect Article 35A bans non-permanent residents from settling permanently in the state, buying land and property within the state and also from taking government jobs and scholarships.

The article is also dubbed as the Permanent Residents Law.

Among other things, it also deprives the state's female residents of their legal property rights if and when they marry a non-permanent resident or ‘outsider’. The provision further extends to children born of any such women. 

The Fate of the Crutches

In an announcement that can have massive repercussions for Jammu and Kashmir, Hon’ble Home Minister Amit Shah has announced in Rajya Sabha that the government has decided to repeal Article 370 of the Constitution which grants special status to J&K. The government has also decided to bifurcate the state into two Union territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature.

Though the announcement was followed by a massive uproar in the Rajya Sabha with opposition protesting in the well of the house, where the decision finally goes is a thing to see.

The fate of the crutches is now depended on the highly controversial decision of the ruling party, and the subsequent support it gathers.

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