The Constitution (Application to Jammu & Kashmir) Order, 2019 superseded ‘the Constitution (Application to Jammu & Kashmir) Order, 1954’. The 1954 presidential proclamation, which was not passed by Parliament, is what gave Article 370 expression on ground.
Signed by the President Ram Nath Kovind, “it shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu & Kashmir) Order, 1954 as amended from time to time.
It is important to note that Article 370(1)(c) explicitly mentions that Article 1 of the Indian Constitution — which lists the States of the Union — applies to Kashmir through Article 370. This means that it is Article 370 that binds the State of Jammu & Kashmir to the Indian Union.
The notification modifying Article 370 declared: in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
According to it, the provisions of only Article 1 and Article 370 applied to the State. Article 1 states that India shall be a Union of States and the territory of India is composed of territories of States, the Union Territories and any acquired territories.
Constitutional expert and noted lawyer Harish Salve said that Article 370 provides for a presidential order. The presidential order of 1954 is now superseded. The bill that’s been introduced is for reorganisation. “You’ve had reorganisation of Bihar, Madhya Pradesh, etc. There is no amendment of Article 370. No requirement of the amendment. There was a presidential order earlier, there’s a new order now. It may have far-reaching political consequences but legally it’s fine,” Salve added.
Under Article 370, the Centre has no power to declare financial emergency. This Article grants an autonomous status to Jammu & Kashmir. Citizens from other States cannot buy property in Jammu & Kashmir. While Article 35A, incorporated into the Constitution in 1954, provides special rights and privileges to the citizens of the State.
In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370.
The unique Article was inserted in the Constitution through a Presidential order in 1954 instead of an Amendment moved through Parliament.
The Jammu & Kashmir Constitution adopted on November 17, 1956 defines permanent resident as a person who was a state subject as of May 14, 1954 or has been a resident in the state for 10 years on that date with a legally acquired property.
In the State bank of India vs Santosh Gupta and Other case, the Supreme Court had ruled that Article 370, though was intended to be temporary or transitional, has become a permanent feature of the Constitution for the reasons mentioned in Article 370(3) that says that without recommendations of the State Constituent Assembly, it could not be abrogated.