Article 370 – The government may have moved to Parliament to remove Article 370 from Jammu and Kashmir, but before doing so, for the first time, by canceling the proposal for the first time in 1954 by gazette notification, bypassing the provision.
With that repeal order, Article 35A now exists regardless of how the situation in Parliament develops upon the removal of Article 370. The reason is that it was incorporated through the 1954 Presidential Proclamation, which draws powers from Article 370.
But this morning, the government rescinded that proclamation through the Constitution (Application for Jammu and Kashmir) Order, 2019. “It shall come into force at once, and shall re-enact the Constitution (application for Jammu and Kashmir), as amended in the Order, 1954 from time to time,” the order said.
The 1954 presidential declaration, which was not passed by Parliament, is an expression of Article 370 on the ground.
Interestingly, the NDA government opposed the announcement of another presidential post to change the order of 1954, but after the decision of the Home Ministry, it did so through a notification.
Article 35A was inserted in the declaration of 1954, in which it was also stated that without the consent of the state legislature, the boundaries of the state can not be changed. It was stated in Part 1 of the Preamble of the Order
“Further, in order to increase or decrease the area of the State of Jammu and Kashmir or to change the name or boundary of that state, no bill will be presented in Parliament, which will be presented in Parliament without the consent of the Legislature of that state. . “
Monday’s order, thus, made it possible for the government to introduce a law to separate Ladakh from Jammu and Kashmir and make the rest of the state a union territory with an assembly.
The 1954 order created a difference between Indian citizens and permanent residents. Article 35A recognized the special rights of people with permanent residence certificates (PRCs). People with PRC had the right to property, employment in state government and participation in local and assembly elections.
The BJP’s argument is that due to this provision, the constitutionally mandated SC / ST reservation was not implemented in the state. The case was often cited that the Valmikis had not been given PRC in the state despite being there since 1957.
Thus, the Monday Order removes all those special rights for the PRC. The Center cannot make new rules until Article 370 is removed.
One of the key features of Article 35A was that the rights of the PRC will not be killed on the basis of which they were given to Indian nationals.
“Nothing in this Constitution is included, no existing law is applicable in the state of Jammu and Kashmir, and after this no law has been enforced by the state Legislature …. Whether any of the provisions of this Part is inconsistent with or takes away or offends any rights conferred on other citizens of India. “
The law enactment of the state legislature, which will not be challenged on the basis of disagreements with the Constitution, was also defined by the announcement of 1954:
a) The sections of the permanent residents of the State of Jammu and Kashmir should be defined or must be;
a) Defining or should be classes of permanent residents of the state of Jammu and Kashmir;
B) granting any special rights of respect to such permanent residents as: (i) employment under the State Government; (ii) acquisition of immovable property in the state; (iii) agreement in the state; Or (iv) scholarship and other types of rights granted by the state government.
The 1954 proclamation was the result of the 1952 Delhi Agreement between the then Prime Minister Jawaharlal Nehru and Sheikh Abdullah. At the time, it was said that the center had gone beyond what was agreed.
Sixty-five years later, the order is withdrawn through a package of decisions that aim not only to end the special status for the state, but to revive its future relationship closer to the center as a union territory To define.