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Insights into Editorial: This is what has changed in Jammu and Kashmir


Insights into Editorial: This is what has changed in Jammu and Kashmir                                          


Context:

The Centre government revoked Article 370 of the Constitution which gives special status to Jammu and Kashmir and brought in the J&K Reorganisation Bill 2019 which splits the state into two Union Territories: Jammu and Kashmir with an Assembly and Ladakh without one.

After the Union Cabinet’s decision, Union Home Minister proposed to scrap Article 370 and moved two resolutions and two Bills in the Rajya Sabha.

 

The Jammu and Kashmir Reorganisation Bill, 2019:

The Bill provides for reorganisation of the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.

The Bill reorganises the state of Jammu and Kashmir into:

  • The Union Territory of Jammu and Kashmir with a legislature, and
  • The Union Territory of Ladakh without a legislature.
    1. The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir.

 

  • The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed as the Lieutenant Governor. The Union Territory of Ladakh will be administered by the President, through a Lieutenant Governor appointed by him.

 

  • The Union Territory of Jammu and Kashmir will have a Council of Ministers of not more than ten percent of the total number of members in the Assembly.

 

  • The Council will aide and advise the Lieutenant Governor on matters that the Assembly has powers to make laws. The Chief Minister will communicate all decisions of the Council to the Lieutenant Governor.

 

  • The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Ladakh, and Jammu and Kashmir.

 

  • Further, the Union Territory of Jammu and Kashmir will have an Advocate General to provide legal advice to the government of the Union Territory.

 

  • The central government will appoint Advisory Committees, for various purposes, including:

 

  1. Distribution of assets and liabilities of corporations of the state of Jammu and Kashmir between the two Union Territories,
  2. Issues related to the generation and supply of electricity and water, and
  3. Issues related to the Jammu and Kashmir State Financial Corporation.
  4. These Committees must submit their reports within six months to the Lieutenant Governor of Jammu and Kashmir, who must act on these recommendations within 30 days.

 

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.
  • The Governments 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.
  • 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.
  • Now, the 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 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, Now, the Presidential Order, too has amended Article 367 without following the amending process.

 

Central Government Argument: How Articles 370, 35A killed Jammu & Kashmir’s economy:

Prime Minister Narendra Modi stated that Article 35A and 370 held back development in Jammu & Kashmir.

There must be investment and job opportunities in Jammu and Kashmir. Article 35A, 370 have been standing in the way of development. No one goes there to invest.

We can build IIMs, but professors are not ready to go there as their children don’t get admission in schools. They can’t find homes. This ends up harming the interests of J&K.  Therefore, the past policies needs to be reviewed.

According to Centre for Monitoring Indian Economy’s (CMIE) monthly time-series data on unemployment, Jammu & Kashmir had the highest monthly average unemployment rate of 15 per cent between January 2016 and July 2019 among all the states.

It is more than double the national monthly average unemployment rate of 6.4 per cent during the period.

Most of the manufacturing activity in the state has remained restricted to the state’s inherent capacities in agriculture and handicrafts.

With the passage of time, the policy makers and the industry continued cobbling many other relaxations that led to a variegated basket of industry incentives.

 

Integration already done, now happened is removal of Autonomy:

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.

It will most likely be challenged in Supreme Court. 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.

 

Conclusion:

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

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 significant move, in theory, opens up potential opportunities for development-led economic growth in the Union Territories of J&K and Ladakh.

Thus, the move is bound to have a significant impact on the demography, culture, and politics of J&K.

Whatever its intent in enabling the full integration of Jammu and Kashmir with India, this decision to alter the State’s status could have unintended and dangerous consequences.