Abrogation of Article 370 and 35A

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Why in News?

President Ram Nath Kovind, promulgated the Constitution (Application to Jammu & Kashmir) Order, 2019, in concurrence with the Government of State of Jammu & Kashmir, with immediate effect. The order supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954 and states that all the provisions of the Constitution of India shall apply to the State of Jammu and Kashmir (J&K).

Introduction

The Indian Independence Act, 1947 which brought an end to the British colonization in India, introduced the Instrument of Accession (IoA). The Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan. J&K initially decided to remain independent and signed standstill agreements with India and Pakistan. However, the state ended up signing an IoA with India in return for its help to save the state from an invasion by Pakistan.

The original accession of state was on three matters, i.e., defence, foreign affairs and communications. At the time of drafting of the Constitution, the representatives to the Constituent Assembly of the state proposed that only those provisions of the Indian Constitution which correspond to the original IoA should apply to the state.

Accordingly, Article 370 was incorporated in the Indian Constitution. It gives special status to the state of Jammu and Kashmir and permits the state to draft its own Constitution. It restricts Parliament’s legislative powers in respect of J&K in as much as it stipulates that the articles of the Constitution, other than those pertaining to defence, foreign affairs and communications, would apply to the state only with the concurrence of the state’s constituent assembly. The provision was incorporated in the Constitution on October 17, 1949, in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. As evident from the title of the Part, it was supposed to be a temporary provision and its applicability was projected to last till the formulation and adoption of the state’s constitution.

However, the state’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370, leaving the status of the provision on a cliffhanger. The provision was later held to have acquired permanent status by way of rulings of the Supreme Court of India and the High Court of Jammu and Kashmir. This implied that to apply a central law to the state on subjects included in the IoA, mere “consultation” with the state government is required. However, to apply a central legislation to matters other than defence, foreign affairs and communications, “concurrence” of the state government was mandatory. The Constitution (Application to Jammu & Kashmir) Order, 2019 has removed the special status of the state and has placed it at par with other states of the country.

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How Government has Abrogated Article 370?

Article 370 was included in the Indian Constitution as a temporary provision for J&K. Articles 370(1)(c) and 370(1)(d) (which are relevant) deal with the applicability of the Indian Constitution to J&K. Article 370(1) (c) states that Article 1 and Article 370 of the Constitution shall apply to J&K. Article 370(1)(d) states that other provisions of the Constitution can be made applicable to J&K with such “modifications as the President may by order specify”.

However Article 370(1)(d) requires that the President secure the concurrence of the J&K government before issuing such an order. Finally, Article 370(3) states that the President can issue a notification making the whole of Article 370 inoperative if such a recommendation is made to the President by the Constituent Assembly of J&K.

Let us now understand what the Indian government did on August 5.

First, the Presidential Order was issued. The Presidential Order uses Article 370(1)(d) to apply all provisions of the Indian Constitution (other than Articles 1 and 370 – which are already applicable) to J&K. The concurrence of J&K government is necessary to effect such a step but since J&K is presently under President’s rule and has no state government, this was effectively dispensed with.

Second, when applying provisions of the Indian Constitution to J&K, the President effected one ‘modification’— to Article 367. Article 367 is the interpretation clause of the Constitution. In Article 367, the Presidential Order inserts a new sub-clause (4)(d) which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. This means that the government has sought to overcome the problem of the Constituent Assembly not having abrogated Article 370 by requiring that “Constituent Assembly” in Article 370(3) be read as the J&K Assembly.

By doing so, it now becomes possible for the J&K Assembly to do what the Constituent Assembly did not i.e. recommend the abrogation of Article 370. To be clear, the President has not amended Article 370(3) itself because he does not have the power to do so. He can only modify other provisions of the Constitution when making them applicable to J&K.

Third, applying this new interpretation of Article 370(3), the President could have abrogated Article 370 upon a recommendation to this effect being made by the J&K Assembly. But since J&K is now a Union Territory and is under President’s rule and has no legislative assembly at the moment, it fell upon Parliament to make this recommendation under the newly ‘modified’ Article 370(3). Accordingly, the recommendation to the President abrogate Article 370 was issued by the Home Minister through his Resolution.

Related Bills and Resolutions

On August 5, Union Minister for Home Affairs introduced two bills and two resolutions regarding Jammu & Kashmir (J&K). These are as follows:

  • Constitution (Application to Jammu and Kashmir) Order, 2019: The president issued Constitution (Application to Jammu and Kashmir) Order, 2019 which comes into force “at once”, and shall “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954“. “All the provisions of the Constitution” shall apply in relation to the state of Jammu and Kashmir.
  • Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}: Article 370 of the Constitution of India, which granted a special status to the state of J&K will ceased to exit. Consequently, the Constitution of India would get applicable to J&K, on par with other states/UTs of the country.
  • Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}: The existing State of Jammu and Kashmir shall cease to exist and two successor Union Territories shall be created – the Union Territory of Ladakh, comprising of the 2 districts of Kargil and Leh, and the Union Territory of Jammu and Kashmir, comprising of the remaining parts of the present State of aJmmu and Kashmir.
  • Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019: The bill amend the Jammu & Kashmir Reservation Act 2004 was and seeks to extend the 10% quota to economically weaker sections of society in J&K in jobs and educational institutions.

What will Change in Jammu and Kashmir?

By the Presidential Order of 1994, almost the entire Constitution (including most constitutional amendments) was extended to Jammu and Kashmir. Ninety-four out of the 97 entries in the Union List are today applicable to Jammu and Kashmir as to any other state. Two hundred and sixty out of the 395 Articles of the Constitution have been extended to the state. Seven out of the 12 Schedules of the Constitution of India too, have been extended to Jammu and Kashmir.

Going further, through application of recent Presedential order Jammu and Kashmir will no longer have separate constitution, flag or anthem. The citizens of Jammu and Kashmir will not have permanent residents -they will be citizens of India alone.

  • As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in that document-until now, this was not the case. Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
  • All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.
  • The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
  • Article 35 (A), which originates from the provisions of Article 370 stands null and void. Any Indian citizen from any part of the country can now buy property in Jammu and Kashmir, take a state government job and enjoy scholarships and other government benefits. Children of a woman marrying outside Jammu and Kashmir will not lose property rights.

What is Article 35A?

Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.

Reasons for Reorganisation of J&K

The government has two reasons for the bifurcation of the existing state of J&K into two Union Territories:

  • The Ladakh Division of the State of Jammu and Kashmir is geographically large but sparsely populated, with a difficult terrain, and there has been a long-pending demand of people of Ladakh to give it the status of a Union Territory.
  • The prevailing internal security situation and cross border terrorism in the existing state of Jammu and Kashmir.

Implications

Article 370 is discriminatory provision within the Indian constitution, creating different class of citizen by providing special law with respect to permanent residents, employment under the state government, such as acquisition of immovable property in the state and settlement in the state. Further, provisions of Article 370 is discriminatory on the basis of gender, class, caste and place of origin too.

  • Article 370 has prevented J&K to merge with India rather than being a basis of its merger.
  • Because of article 370, democracy never took root in J&K, corruption flourished, widespread poverty took root and no socio-economic infrastructure could come up. It is the root cause of terrorism.
  • Further, 73rd and 74th Amendments to the Constitution could not be applied to J&K due to article 370. After revocation of article 370, Panchayat and Nagar Palika will become constitutional bodies and thus elections could be held at regular interval .
  • The doors to private investment in J&K would be opened, which would in turn increase the potential for development there. Increased investments would lead to increased job creation and further betterment of socio-conomic infrastructure in the state. Opening of buying of lands would bring in investments from private individuals and multinational companies and give a boost to the local economy.

Issues and challenges

The founding fathers of the Republic favoured a strong Centre, but they were also prudent in seeking the route of persuasion and accommodation towards linguistic and religious minorities in the interest of national integration. The special status of J&K was never meant to be permanent, but it should not have been scrapped without wider consultations.

True, the special status of J&K was meant to end, but only with the concurrence of its people. The Centre’s abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, that this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown reveals a cynical disregard of democratic norms.

The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess.

  • The first step was to declare by a presidential decree that the ‘Governor’ — without regard to the fact that he has no Council of Ministers now to aid and advise him — can speak for the state government and give his concurrence to any modification in the way the Constitution of India applies to Jammu and Kashmir.
  • Second, on the basis of this ‘concurrence’, the latest Presidential Order scraps the previous one of 1954, abrogating the separate Constitution of Jammu and Kashmir.
  • Third, the fact that the State is under President’s Rule has been used to usher in a new dispensation under which Jammu and Kashmir becomes a Union Territory with a legislature and Ladakh another such territory without a legislature.
  • Though, one constitutional expert, Subhash Kashyap, told that the recent Presidential order was “constitutionally sound” and that “no legal and constitutional fault can be found in it”. But, however another constitutional expert, AG Noorani, told that it was “an illegal decision, akin to committing fraud” that could be challenged in the Supreme Court. Thus, the constitutional experts are sharply divided on the constitutionality of Presidential order.

In sum, a purported process to change the constitutional status of a sensitive border state has been achieved without any legislative input or representative contribution from its people.

Conclusion

J&K would become a true part of India in letter and spirit once article 370 is removed. The path to solution to all the problems of Kashmir goes through the repealing of article 370. This step would stand strong and would pass the test of legal scrutiny. Article 370 was a temporary and transient provision, it had to go. Article 3 of the Jammu and Kashmir constitution itself declares the state to be an integral part of India. Integration thus, was already complete. Article 370 merely gave some autonomy to Jammu and Kashmir, which has now been withdrawn.

However, Bifurcation of Status into Union territory has strategic importance. The entire region has geostrategic importance considering its gives access to Afghanistan, China and Central Asia. Therefore apart from our domestic interest it is extremely critical region. And it good to keep under the control of central government, which allow the government to secure the security in the region is paramount over the other peculiar interest.

Government decision to revoke Article 370, scrap Article 35A and reorganise J&K (into two Union territories) will go down as one the most audacious decisions taken since Independence. The challenge, now, will be to ensure that the ownership for such a move is taken by the real stakeholders, the state’s people.

By

Deepak Dutt Mamgain

M.Sc.(Maths), MBA

Ex Employee Min. of Science & Technology

 

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