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Burning Issues

[Burning Issue] Reorganization of Jammu and Kashmir


Context

  • The Union Home Minister introduced two statutory resolutions, one, to recommend that the President issue a notification rendering Article 370 inoperative, and two, to accept the J&K Reorganization Bill.
  • The move was intended to fill the political vacuum in the valley.

J&K Reorganization Process

  1. President issued a presidential order under Article 370 (1) of the Constitution
  • This clause enables the President to specify the matters which are applicable to J&K.
  • As it can be issued only with the J&K government’s concurrence, the notification uses the words “with the concurrence of the Government of the State of J&K”.
  • This presumably means the Governor, who is now administering the State under President’s Rule, has given his concurrence on behalf of the State government.
  1. The Order supersedes the 1954 Order
  • This effectively means that all the provisions that formed the basis of a separate “Constitution” for J&K stand abrogated.
  • The Order declares that all the provisions of the Constitution of India, shall apply to J&K too.
  1. Special measures for scrapping of Article 370
  • A few clauses were added to Article 367 of the Constitution. Article 367 contains “Interpretations”.
  • They contain guidance on how to read or interpret some provisions.
  • The new clauses say, when applicable to J&K, all references to the ‘Sadar-i-Riyasat’, acting on the aid and advice of the Council of Ministers, will be construed as references to the Governor of J&K.
  • All references to the State government shall mean “the Governor”.
  1. Abrogating Constituent Assembly
  • Most importantly, the reference to the “Constituent Assembly” in a provision to Article 370 (3) has been amended to read “Legislative Assembly of the State”.
  • This is the provision that says the President can declare that Article 370 is no more operative only on the recommendation of the Constituent Assembly.
  1. Reorganization
  • The Bill envisages converting J&K into a Union Territory with a legislature, and carve out Ladakh region as another Union Territory, but without a legislature.

Background

  • J&K enjoyed special status under Article 370 of the Constitution of India.
  • This Article describes it as a temporary provision and that it will cease to be operative if the President issues a public notification to that effect.
  • However, prior to that, a recommendation is necessary from the Constituent Assembly of J&K.

What is Article 370?

  • Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution.
  • It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA) mere “consultation” with the state government is needed.
  • But for extending it to other matters, “concurrence” of the state government is mandatory.

What changes did Art. 370 mandate?

  • As a result of Article 370, J&K had its own Constitution, and all laws passed by Parliament will not be applicable to the State, unless the State government gives its concurrence.
  • The Constitution (Application to J&K) Order, 1954, lists the Articles and provisions that apply to J&K.

Another bone of contention: Article 35A

  • Further, the President also listed a set of exceptions under Article 35A of the Constitution.
  • Article 35A empowered the J&K state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
  • It protected the exclusive laws – such as the bar on outsiders buying property and women marrying non-Kashmiris losing their property rights – of the State.
  • It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to J&K) Order, 1954 – issued by the President of India on 14 May 1954.
  • This was an exercise of the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of J&K.

Why Article 35A  was allowed to continue?

  • Since Article 35A predates basic structure theory of 1973, as per Waman Rao (1981), it cannot be tested on the touchstone of basic structure.
  • Certain types of restrictions on purchase of land are also in place in several other states, including some in the Northeast and Himachal Pradesh.
  • Domicile-based reservation in admissions and even jobs is followed in a number of states, including under Article 371D for undivided Andhra Pradesh.

Outcome of the proposed reorganization

I. Division of the state

  • Both Ladakh and Jammu and Kashmir will be Union territory.
  • J&K will have a state Legislative Assembly like Delhi and Puducherry while Ladakh would be a Union Territory without Legislature.

II. Single national flag

  • The state would have just one National Flag that is our Tri-Colour of India.

III. Status of Article 370

  • The Presidential Order has not scrapped Article 370.  All provisions of the article 370 are null and void except clause 1 .
  • Clause 1 of the article 370 envisages that Jammu and Kashmir is the integral part of India.
  • But invoking this very article special status of Jammu & Kashmir has been withdrawn.
  • Thus Article 370 is very much on the statute book.

IV. Status of Article 35-A

  • Since Presidential Order of August 5 has extended all the provisions of the Constitution of India to Kashmir, Fundamental rights chapter has now been extended.
  • Hence discriminatory provisions of Article 35-A have now become unconstitutional. President also may withdraw Article 35-A.

Analysing the reorganization-

 

Why was Article 370 a bone of content?

  • Article 370 gave some special powers to the state of Jammu and Kashmir.
  • It allowed the state to have its own constitution, its own prime minister (which was later removed) and its own flag.
  • The article also restricted the Parliament’s jurisdiction to draft laws for the state except for three areas — defense, foreign affairs and communication.

Why Article 35-A was discriminatory?

  • Article 35-A was inserted in the Constitution through a presidential proclamation in 1954.
  • It was surreptitiously inserted and it was neither a part of the original constitution nor did it come as a constitutional amendment.
  • This article empowered the state to decide permanent residents and their privileges with regards to land ownership and employment in Jammu and Kashmir.
  • And people who were deemed ‘non-residents’ were not allowed to buy property, settle down, seek government jobs, college admissions or scholarships.

Was Article 370 a temporary provision?

  • It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’.
  • Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
  • Another interpretation was that accession was temporary until a plebiscite.
  • The Supreme Court in April 2018 said that despite the headnote using the word “temporary’, Article 370 is not temporary.
  • In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.

Was Article 370 useful to Centre?

  • The Centre has used Article 370 even to amend a number of provisions of J&K’s Constitution, though that power was not given originally.
  • Article 356 was extended though a similar provision that was already in Article 92 of the J&K Constitution, which required that President’s Rule could be ordered only with the concurrence of the President.
  • To change provisions for the Governor being elected by the Assembly, Article 370 was used to convert it into a nominee of the President.
  • Again, Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor.
  • In certain ways, Article 370 reduces J&K’s powers in comparison to other states. It is more useful for India today than J&K.

Was it  un-constitutional?

  • Article 370 itself mentions Article 1, which includes J&K in the list of states.
  • It has been described as a tunnel through which the Constitution is applied to J&K.
  • India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K.
  • This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status.
  • By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments.
  • Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.

Did it isolate J&K from India?

  • Article 3 of the J&K Constitution declares J&K to be an integral part of India.
  • In the Preamble to the J&K Constitution, there is no claim to sovereignty.
  • There is categorical acknowledgement about the object of the J&K Constitution being to further define the existing relationship of the state with the Union of India as its integral part thereof.
  • Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.

What it means for the Kashmiri Population?

  • Article 370 is not an issue of integration but of autonomy.
  • The recent Presidents Order is concerned with uniformity along with the integration.
  • Article 370 was not only part of the Constitution but also part of federalism, which is basic structure.
  • Kashmiris fear the move would lead to a demographic transformation of the region.

Is the road clear for the reorganization?

  • 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. President would have to first get the consent of the Constituent Assembly of J&K before issuing such a notification.
  • As there is no Constituent Assembly in existence now, there is nobody to recommend the scrapping of Article 370.
  • Ideally, any such amendment to the name of the ‘Constituent Assembly’ would require the assent of the Constituent Assembly itself.

 Way ahead

  • According to experts the order will face both legal and political challenges in the coming days.
  • The government can argue that the amendment made in August 5 notification only applies to Jammu and Kashmir and not the entire Dominion of India, and so, does not require a constitutional amendment.
  • This point of contention may reach the Supreme Court, where several petitions on the constitutionality of Article 35A, and in consequence Article 370, are pending for adjudication.
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