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RSTV: THE BIG PICTURE- ARTICLE 370- ABROGATION AND IMPLICATIONS


RSTV: THE BIG PICTURE- ARTICLE 370- ABROGATION AND IMPLICATIONS


Introduction:

In an announcement with massive repercussions for Jammu and Kashmir, Home Minister Amit Shah announced in Rajya Sabha that the government has repealed Article 370 of the Constitution which grants special status to J&K. The government also decided to bifurcate the state into two Union territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature. Shah’s announcement was immediately followed by massive uproar in the Upper House with opposition MPs protesting in the Well of the House. Back in the Valley, three of Jammu and Kashmir’s most prominent politicians — Mehbooba Mufti, Omar Abdullah and Sajjad Lone are under house arrest amid a massive security-build up in the state. Internet services and mobile services have been suspended in several places and all public gatherings are banned in Srinagar district as section 144 was imposed from midnight.

 

What is article 370 Guaranteed By Constitution of India?

The Article 370 is defined under Part XXI of the Indian Constitution which deals with Temporary, Transitional and Special Provisions.

Though in this part (Part XXI) special provision are given to the states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Sikkim, Mizoram, Arunachal Pradesh and Goa, the special power and provision of J & K are nowhere when compared.

Article 370 restricts Indian parliament to make any laws for the state and it can only preside over the subjects like Defence, External Affairs, and communication.

Laws related to union and concurrent list in J & K can be passed only after consultation with the state government.

 

Brief Background of Article 370:

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir.

The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.

The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether.

After the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.

While the article was created to give temporary, transitional, special provisions, it has become a Permanent feature.

In the years since Independence, this article was to be removed. But due to unwell administration and wars between India and Pakistan, this article has not been touched.

 

What is Article 35A?

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.

The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

 

How did it come about?

  1. Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
  2. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
  3. The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
  4. So, Article 35A was added to the Constitution as a testimony of the special considerationthe Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

 

Critical side of Article 35A:

How Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”?

  1. It treats non-permanent residents of J&K as ‘second-class’ citizens.
  2. Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.
  3. Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
  4. Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
  5. It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
  6. The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).

 

Ending Jammu & Kashmir’s special status in the Indian Union, the government has extended all provisions of the Constitution to the State in one go, downsized the State into two Union Territories and allowed all citizens to buy property and vote in the State.

In this regard, Union Minister for Home Affairs, Shri Amit Shah, introduced two bills and two resolutions regarding Jammu & Kashmir (J&K). These are as follows:

  • Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} – issued by President of India to supersede the 1954 order related to Article 370.
  • Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}.
  • Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}.
  • Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019.

 

 Key changes:

  1. The President had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to Kashmir. However, the drastically altered Article 370 will remain on the statute books.
  2. While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.
  3. The notification by the president has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir.
  4. The Bill proposes wide powers to the Lieutenant Governor of the proposed Union Territory of Jammu and Kashmir and makes it the “duty” of the Chief Minister of the Union Territory to “communicate” all administrative decisions and proposals of legislation with the LG.
  5. All Central laws and State laws of J&K would apply to the new Union Territories of J&K and Ladakh.
  6. Assets and liabilities of J&K and Ladakh would be apportioned on the recommendation of a Central Committee within a year.
  7. Employees of State public sector undertakings and autonomous bodies would continue in their posts for another year until their allocations are determined.
  8. The police and public order is to be with the Centre.
  9. The notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

 

Legislative powers of the Union Territory of Jammu and Kashmir:

  1. The Legislative Assembly may make laws for the whole or any part of the Union Territory of Jammu and Kashmir with respect to any of the matters enumerated in the state list except on subjects “public order” and “police” which will remain in the domain of the Centre vis-a-vis the LG.
  2. In case of inconsistencies between laws made by Parliament and laws made by the Legislative Assembly, earlier law shall prevail and law made by the Legislative Assembly shall be void.
  3. The role of the Chief Minister will be to communicate to the L-G all decisions of the Council of Ministers relating to the administration of affairs of the Union Territory and proposals for legislation and to furnish such information relating to the administration of affairs as the L-G may call for.

 

Role and powers of the Lieutenant Governor:

  1. The Bill specifies that the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh will have a common Lieutenant Governor.
  2. Appointment of L-G in Ladakh: The President shall appoint the L-G under article 239. The L-G will be assisted by advisors appointed by the Centre since the Union Territory will not have a Legislative Assembly.
  3. In the case of Union Territory of Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall outside the purview of powers conferred on the Legislative Assembly, in which he is required to exercise any judicial functions, and/or matters related to All India services and the Anti-Corruption Bureau
  4. The Chief Minister shall be appointed by the L-G who will also appoint other ministers with the aid of the CM. The L-G shall also administer the oath of office and of secrecy to ministers and the CM.
  5. The L-G will have the power to promulgate ordinances which shall have the same force and effect as an act of the Legislative Assembly assented by the L-G.

 

Impact:

  1. The tabling of the proposed Reorganisation Bill is also proof that the long reign of the 1954 Order has ended. The 1954 Order had introduced a proviso to Article 3, namely that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State“. That power of the State Legislature to give prior consent does not exist anymore. This has provided a free hand to the Centre to table the Reorganisation Bill.
  2. With the removal of the 1954 Order, the power of the State Legislature ceases to exist and Parliamentary laws, including that of reservation, would apply to Jammu and Kashmir as it does in other parts of the country.
  3. The government called this the end of “positive discrimination” and the closing of the “chasm” between residents of J&K and citizens of other parts of the country.
  4. The removal of the 1954 Order further also negates a clause which was added to Article 352. The Order had mandated that no proclamation of Emergency on grounds “only of internal disturbance or imminent danger shall have effect” in the State unless with the concurrence of the State government.

 

Rationale behind this move:

  1. Article 370 has prevented J&K to merge with India rather than being a basis of its merger.
  2. Article 370 was seen as discriminatory on the basis of gender, class, caste and place of origin.
  3. Post the repeal of the Article 370, doors to private investment in J&K would be opened, which would in turn increase the potential for development there.
  4. Increased investments would lead to increased job creation and further betterment of socio-economic infrastructure in the state.
  5. Opening of buying of lands would bring in investments from private individuals and multinational companies and give a boost to the local economy.

 

Criticism:

  1. The reduction of the state to a union territory will give a fillip to the concept of constitution being more unitary
  2. The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.
  3. The passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low.
  4. The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess.
  5. 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.

 

Challenges ahead:

  1. The move will be legally challenged on grounds of procedural infirmities and, more substantively, that it undermines the basic feature of the compact between Delhi and Srinagar that was agreed upon in 1947.
  2. Law and order maintenance challenge.
  3. The President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly.
  4. While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two Union Territories.
  5. But beyond the legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the security cordon is lifted from the State.
  6. What was unbecoming is the unwillingness to enter into consultation with the mainstream political leaders; in no other State would former Chief Ministers have been dealt with so cavalierly.

 

Conclusion:

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. 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.

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