BACKGROUND OF ARTICLE 370 AND THE PROMISE OF A PLEBISCITE
After independence, the princely states were grated freedom concerning joining the union of India Pakistan or staying independent. The Ruler of J&K, Maharaja Hari Singh, who was the sole depot of power in the state, chose to accede to India through the accession instrument of 26 October 1947 on the subjects of external affairs, communication, defense, and ancillary matters. Clause 5 of the IOA also states explicitly that “it cannot be varied by any amendments”. It also was the proviso to Article 3 of the Indian constitution, which states “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.” Therefore, the state of Jammu and Kashmir preserved its integrity through this article as well as being a part of the union of India.
The presidential order on 5th august
The President of India issued an order on 5th august 2019, under the power of Article 370, overriding the prevailing 1954 Presidential Order and nullifying all the provisions of autonomy granted to the state. The Home Minister introduced a Reorganisation Bill in the Indian Parliament, aiming to divide the state into two union territories[1]. On 5th August, this bill was passed by Rajya sabha and on 6th august by Lok Sabha.
Petitions filed against the abrogation of Article 370
In the case, of Prem Nath Kaul v. the State of J&K, it was held that under article 370, the president’s powers can only be continued on the approval from the legislative assembly of the state. Contrary to that, in the case of P.L. Lakhanpal v. the State of J&K, the petitioner argues that the authorities didn’t inform him as to why he had been arrested under a preventive detention statute however under the provision of Article 35(c), a preventive detention statute in J&K, couldn’t be challenged because it violated the fundamental rights under the Indian constitution. The Supreme Court held that this provision applied to the state with the president’s power under article 370.
Finally, in the case of State bank of India v. Santosh Gupta, the Supreme Court held that even though the J&K Constitution was subordinate to the Indian constitution, the president cannot issue an order to make article 370 inoperative without the recommendation of the constituent assembly.
Our nation witnessed a momentous move by the Union government which was also widely maintained to be a historic debacle by critics from inside and abroad. This was due to the abrogation of Article 370 and Article 35A of the Constitution of India which allowed for special status to the state of Jammu and Kashmir.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
