The BJP government fulfilled its election promise of removing the special status for Jammu and Kashmir in India’s Constitution. Special status was withdrawn by invoking the same Article 370which had been protecting the autonomy of Jammu and Kashmir.

Has Article 370 been scrapped?
The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.

The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state. Earlier, Governor of J&K was regarded as  Sadr-i-Riyasat.

This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.

Why J&K has special status?
Jammu and Kashmir entered into Indian Union by signing ‘Instrument of Accession’ in 1954. The agreement was signed by Maharaja Hari Singh of Jammu and Kashmir and was endorsed by popular leader Sheikh Abdullah. The agreement provided that J&K would have large power to self-determine its affairs and thus J&K would enjoy large autonomy.

At the same time, Article 370 was incorporated in the Constitution of India.

What are provisions of Article 370?

Special Provisions with Respect to Jammu and Kashmir
1. Parliament can make laws related to J&K on those matters of union and concurrent lists which are

(a) Mentioned in the instrument of accession. Instrument of accession contained defence, external affairs, communication, and matters which are ancillary to these matters.

(b) Other matters specified by the President in concurrence with the State Government.

2. Application of Indian Constitution to J&K

(a) Art. 1 is applicable to J&K.

 (b) Apart from Art. 1 and Art. 370, other provisions of Indian Constitution are applicable to the state with such exceptions and modifications as specified by the President in consultation with state government.

3. Art. 370 which provides special status to J&K can cease to operate when the President does so, on the recommendation of J&K constituent assembly.

What is the status of Article 35A now?
Article 35A stems from Article 370, and was introduced through a Presidential Order in 1954. Article 35A does not appear in the main body of the Constitution — Article 35 is followed by Article 36 — but appears in Appendix I. Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

Monday’s Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. Therefore, the discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A. This provision is currently under challenge in the Supreme Court on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. However, Monday’s Presidential Order, too has amended Article 367 without following the amending process.

What is Article 35A ?
Article 35A was incorporated in the Indian Constitution in the year 1954 through a constitutional amendment even before the Constitution of Jammu and Kashmir (J&K) came into existence. The Article allows the state of Jammu and Kashmir to grant special privileges and rights to permanent residents. It debars non-residents of J&K from buying land or property, getting a government job, or voting in assembly elections of Jammu and Kashmir.

Recent Challenges to Article 35A
The Constitutionality of Article 35A was challenged through a petition filed in the Court on the following grounds:

1. The petition said Article 35A protects certain provisions of the J&K Constitution which denies property rights to native women who marry from outside the State. The denial of these rights extends to her children also.

2. Article 35A also empowers the State’s legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other States or any other right under the Constitution.

3. Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to marry a man of their choice by not giving the heirs any right to property if the woman marries a man not holding the Permanent Resident Certificate. Her children are denied a permanent resident certificate. 4. State’s special autonomous status under Articles 35A and 370 was discriminatory against non-residents as far as government jobs and real estate purchases are concerned. The matter is pending before the Supreme Court.

 So, what has changed in Jammu and Kashmir?
Rajya Sabha on Monday approved The Jammu and Kashmir Reorganisation Bill, 2019. Lok Sabha approved the same bill on Tuesday. In effect, the state of Jammu and Kashmir will now cease to exist; it will be replaced by two new Union Territories: Jammu and Kashmir, and Ladakh.

UTs have become states earlier; this is the first time that a state has been converted into a UT. The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.

Article 3 of the Constitution gives Parliament the power to amend the Constitution by a simple majority to change the boundaries of a state, and to form a new state. But this change requires that such a Bill be first referred to the concerned state Assembly by the President for ascertaining its views. Explanation II of Article 3 says Parliament’s power extends to forming Union Territories.

Not only has Jammu and Kashmir lost its special status, it has been given a status lower than that of other states. Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.

It is also likely that corporates and individuals will be able to buy land in Jammu and Kashmir. Non-Kashmiris might now get jobs in Kashmir. A process of demographic change might begin, and progress over the coming decades.

 J&K before and after 2019

What is the significance of Article 370?
The most important feature of federalism in the United States was the “compact” between the 13 erstwhile British colonies that constituted themselves into a federal country. Article 370 was an essential facet of India’s federalism because, like the compact in the United States, it governed the relationship of the Union with Jammu and Kashmir. The Supreme Court has held federalism to be part of the basic structure of India’s Constitution.

Can the Presidential Order be challenged in the Supreme Court? On what grounds?
It will most likely be challenged. However, the Supreme Court will consider that Article 370 does, indeed, give sweeping powers to the President. It might also take two to three years for a Constitution Bench of the court to decide such a challenge.

The possible grounds of challenge could include the argument that the conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred by the President to the state Assembly. Also, can the Constituent Assembly mean Legislative Assembly? Are the Governor and the state government one and same?

The constitutional relevance of Instrument of Accession will also be examined by the court. Whether Article 370 was part of the basic structure will likely be considered. The use of Article 367 in amending Article 370 will also be examined.

How has Article 367 been used in amending Article 370?
The government has added a new clause to Article 367 which amends the proviso to clause (3) of 370. Article 367 deals with the applicability of the General Clauses Act 1897 to interpret the provisions of the Constitution, The August 5 notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

Clause (3) of Article 370 gives the President power to end the special rights and privileges of the people of Jammu and Kashmir under the 1954 Order. However, the clause carries a rider. That is, the President would have to first get the consent of the Constituent Assembly of J&K before issuing such a notification. This rider or check on the President’s power was intended to give the people of the State a say in their own future.

Now, the Constituent Assembly has ceased to exist since 1956, when it was dissolved. The Assembly, at the time of its dissolution, had said nothing about the abrogation of Article 370. Consequently, Article 370, though it resides among the ‘temporary provisions’ of the Constitution, is deemed have become a permanent feature of the Constitution.

The August 5 notification has tided over this obstacle of a non-existent ‘Constituent Assembly’ by amending the expression in the proviso to ‘Legislative Assembly’. Ideally, any such amendment to the name of the ‘Constituent Assembly’ would require the assent of the Constituent Assembly itself. Besides, an amendment in Article 370 should have undergone the constitutional amendment procedure envisaged under Article 368 of the Constitution.

But the government can, on the other hand, argue that the amendment made in its August 5 notification only applies to Jammu and Kashmir and not the entire Dominion of India, and so, does not require a constitutional amendment.

So, is Kashmir now fully integrated with India?
Article 3 of the Jammu and Kashmir constitution itself declares the state to be an integral part of India. In the preamble of the Jammu and Kashmir constitution, not only is there no claim to sovereignty like in the Constitution of India, there is, rather, a categorical acknowledgment that the object of the Jammu and Kashmir constitution is “to further define the existing relationship of the state with the Union of India as its integral part thereof”.

Integration thus, was already complete. Article 370 merely gave some autonomy to Jammu and Kashmir, which has now been withdrawn.

jammu and kashmir reorganisation bill 2019

Image credit: The Hindu