SC: Is Article 370 being equated to Basic Structure of Constitution?

SC: Is Article 370 being equated to Basic Structure of Constitution?

Subject :Polity

Section: Constitution

Why in news:

 Recently the Supreme Court asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution.

Article 370:

• The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state.
• The J&K Constituent Assembly was dissolved after it drafted the state’s constitution.
• Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.

Article 35A:

• Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

Removal of Article 370:

• It commenced with a presidential order issued nearly four years ago.
• Amendments were made to make applicable the entirety of India’s Constitution to Jammu and Kashmir (J&K).
• The State was also sundered into two Union Territories: J&K and Ladakh.
• It was done when the State was under President’s Rule with no elected Legislative Assembly in place.

How was Article 370 introduced?

• The Indian Independence Act, 1947: It allowed the Government of India Act, 1935, to serve as an interim constitution until the country adopted its own.
• The statute permitted princely States to accede to India by executing an instrument of accession.
• In the case of J&K, the instrument came with qualifications that were ultimately written into Article 370.
• It stipulated that Parliament could legislate for J&K only over matters concerning external affairs, defense, and communications.
• Where Parliament intended to legislate over areas otherwise provided for in the instrument of accession, it could do so by consulting the State government.
• where it proposed to enact laws beyond the agreed subjects, it required additional ratification by the State’s Constituent Assembly.
• After 1957, when J&K’s Constitution came into force, its Constituent Assembly was disbanded and replaced by a Legislative Assembly.
  • Article 370 remained unaltered.

How was it altered?

• Part XIX of the Constitution, Article 367 comprises a set of general rules for interpreting the Constitution.
  • Through this Article, the President’s order on August 5, 2019, amended with a view to transforming the existing status of J&K.
• It was done by adding a new clause to Article 367: It stipulated that wherever the term “Constituent Assembly of the State” was used in Article 370, it would now refer to the “Legislative Assembly of the State.”