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Explained: What’s changed in Jammu and Kashmir?

Jammu and Kashmir has lost its special status, and reduced to two Union Territories. What is the history of Partition and accession to India that has been overturned? What are Articles 370 and 35A, that were supposed to define the special status of the state?

Article 370, Article 370 scrapped, Kashmir, Kashmir special status, Amit Shah, Jammu and Kashmir Reorganisation Bill, Farooq Abdullah, Narendra Modi, Mehbooba Mufti, Indian Express With Nehru by his side, Sheikh Abdullah announces in Srinagar that Jammu and Kashmir and India would be one. (Express Archive)

The BJP on Monday 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 Special status was withdrawn by invoking the same Article 370 which had been seen as firewalling the autonomy of Jammu and Kashmir. What are the constitutional issues in — and arising out of — this development? What will change in the state and the country? What can be the basis of a possible legal challenge to the decision of the government?

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, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”.

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.

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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.

Live updates: J&K loses special status

So, what has changed in Jammu and Kashmir?

Rajya Sabha on Monday approved The Jammu and Kashmir Reorganisation Bill, 2019. The Bill will come up in Lok Sabha on Tuesday, and is expectedly to pass easily. 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.

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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.

EXPRESS EDIT/OPINION | Edit: Rupture in history, stitching a future | PB Mehta writes: Blood and betrayal | Ram Madhav writes: Correcting a historic blunder | Manish Sabharwal writes: For Naya Kashmir | Imad Ul Riyaz writes: We Are Just At The Beginning | C. Raja Mohan writes: Possibilities in the Northwest

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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.

‘Horrifying feeling’: Kashmiri traders, 3000 kms away in Kochi, are on their nerves

Over the years, the central government has used Article 370 to amend a number of provisions of the Jammu and Kashmir constitution, even though that was not the power given to it under this Article of the Constitution of India. Article 370 had a limited mandate to extend the applicability of the Constitution of India to Jammu and Kashmir.

Thus, Article 356 (on the imposition of President’s Rule in the states) was extended to Jammu and Kashmir, even though a similar provision was already there in Article 92 of Jammu and Kashmir’s constitution. To change the provision in the Jammu and Kashmir constitution regarding the Governor being elected by the state Assembly, Article 370 was used to convert the position into a nominee of the President.

Governors have proved to be the Centre’s agents in the state. Monday’s Order has now extended the remaining Articles of the Constitution after withdrawing all the earlier Orders.

The illuminated Parliament House on Monday. (Express photo by Renuka Puri)

Why didn’t governments before this take such a step?

Nehru probably lacked the political will, and wanted to honour the constitutional pact with Maharaja Hari Singh. He also had a sentimental connection with Kashmir. Atal Bihari Vajpayee’s idea was that of the healing touch — in the form of Kashmiriyat, Insaniyat and Jamhooriyat. The first Modi government was in an alliance with the PDP in Jammu and Kashmir till 2018. The Home Minister has said that once peace returns and the situation improves, the government will restore statehood to Jammu and Kashmir.

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.

Article 370, Article 370 scrapped, Kashmir, Kashmir special status, Amit Shah, Jammu and Kashmir Reorganisation Bill, Ghulam Nabi Azad, Chidambaram, Farooq Abdullah, Narendra Modi, Mehbooba Mufti, Indian Express Opposition leaders P Chidambaram, Ghulam Nabi Azad (Congress), TMC’s Derek O’Brien and SP’s Ram Gopal Yadav. (Express photo by Anil Sharma)

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.

Click for our complete coverage on Jammu and Kashmir

(Prof Faizan Mustafa is an expert of constitutional law. These are his personal views)

First published on: 05-08-2019 at 06:23:37 pm
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