On 5th August 2019, President of India in the exercise of the powers conferred by
Clause (1) of Article 370 of the Constitution had issued the Constitution
(Application to Jammu and Kashmir) Order, 2019. Through this, Government of
India has made modifications in Article 370 itself (not revoked it).
With this, the Government of India has dramatically altered the relationship
between the state of Jammu and Kashmir and the Indian Union.
Background
On October 17, 1949, Article 370 was added to the Indian constitution, as
a 'temporary provision', which exempted Jammu & Kashmir, permitting it to draft
its own Constitution and restricting the Indian Parliament's legislative powers in the
state.
o It was introduced into the draft constitution by N Gopalaswami
Ayyangar as Article 306 A.
Under Article 370: The Constituent Assembly of Jammu & Kashmir was
empowered to recommend which articles of the Indian Constitution should apply to
the state,
o The J&K Constituent Assembly was dissolved after it drafted the
state's constitution. Clause 3 of the article 370gives the President of India the
power to amend its provisions and scope.
Article 35A stems from Article 370 and was introduced through a Presidential
Order in 1954, on the recommendation of the J&K Constituent Assembly.
o Article 35A empowers the Jammu & Kashmir legislature to define
the permanent residents of the state, and their special rights and privileges.
o It appears in Appendix I of the Constitution.
Key Changes
The Constitution (Application to Jammu and Kashmir) Order, 2019 has
replaced Presidential Order of 1954.
Subsequently, the Jammu and Kashmir Reorganisation Bill, 2019, passed
by Parliament divides the state of Jammu and Kashmir into two new Union
Territories (UTs): Jammu & Kashmir, and Ladakh.
o This is the first time that a state has been converted into a UT.
o Of the six Lok Sabha seats currently with the state of Jammu and
Kashmir, five will remain with the union territory of Jammu and Kashmir, while
one will be allotted to Ladakh.
o The UT of Jammu and Kashmir will have an Assembly, like in
Delhi and Puducherry.
o 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.
Status of J&K Union Territory
o J&K Assembly will have a five-year term, not six, as was the earlier
case.
o Section 32 of the J&K 2019 Bill proposes that the Assembly can
make laws on any subjects in the State and Concurrent lists except on state
subjects relating to “public order” and “police”.
This is similar to Article 239 A of the Constitution that is
applicable to Union Territories of Puducherry and Delhi.
However, by insertion of Article 239AA and by virtue of
the 69th Constitutional Amendment, the Delhi Assembly cannot legislate on
matters in entry 18 of the State List, i.e. land.
In the case of J&K, the Assembly can make laws on land.
The special status provided to J&K under Article 370 will be abolished.
o Jammu & Kashmir will no longer have the separate constitution,
flag or anthem.
o The citizens of Jammu and Kashmir will not have dual citizenship.
o 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 the Indian constitution.
o Article 360, which can be used to declare a Financial Emergency,
will now also be applicable.
o All laws passed by Parliament will be applicable in Jammu and
Kashmir, including the Right to Information Act and the Right to Education
Act.
o The Indian Penal Code will replace the Ranbir Penal Code of
Jammu and Kashmir.
o Article 35A, which originates from the provisions of Article
370 stands null and void.
Since Presidential Order has extended all provisions of the
Constitution to Jammu and Kashmir, including the chapter on Fundamental
Rights, the discriminatory provisions under Article 35A will now be
unconstitutional.
The Need for Changes
Article 370 was added in the Indian constitution to provide autonomy to
J&K.
o However, it failed to address the well-being of Kashmiris who have
now endured two generations of insurgency and violence.
o It contributed to the gap between Kashmir and the rest of the nation.
International events
o The situation emerging in the western neighbourhood and the
possible re-ascendance of the Taliban in Afghanistan call for greater attention
and care.
o More so, the emerging geopolitical dynamics in Afghanistan and the
resultant United States-Pakistan rapprochement could have potentially led to
more heat on the Kashmir situation in the months ahead.
Challenges
Constitutional challenges
o Presidential order that sought to abrogate of Jammu and Kashmir’s
special status, according to Article 370 (3) the President would require the
recommendation of the constituent assembly of Jammu and Kashmir to make
such a change.
o However, the 2019 Presidential order adds a sub-clause to Article
367, replacing the terms:
“Constituent Assembly of Jammu and Kashmir” to mean
“legislative Assembly of Jammu and Kashmir”.
“Government of Jammu and Kashmir” to mean “Governor
of Jammu and Kashmir acting on the aid and advice of the council of
ministers”.
o The government sought to dilute the autonomy under Article
370 without bringing a Constitutional Amendmentthat would require a two-
thirds majority in the Parliament.
This provision is currently under challenge in the Supreme
Court on the ground that it added article 35A in the Indian Constitution only
through a Presidential Order.
Conversion of Jammu and Kashmir into a Union Territory is in violation of
Article 3, as the Bill was not referred to the President by the State Assembly.
o In the reorganisation of the state, the Presidential order also requires
the concurrence of the government of the state. However, since Jammu & Kashmir
is currently under Governor’s rule, the Governor’s concurrence is deemed to
be the government’s concurrence.
Federalism issue:
o The Instrument of Accession was like a treaty between two sovereign
countries that had decided to work together.
The maxim of pacta sunt servanda in international law, which
governs contracts or treaties between states, asks that promises must be honoured.
o In Santosh Kumar v. State of J&K & ors (2017), the SC said that due
to historical reasons, Jammu and Kashmir had a special status.
o In SBI v Zaffar Ullah Nehru (2016), the SC held that Article 370
cannot be repealed without the concurrence of the Constituent Assembly of
Jammu and Kashmir.
Possible Consequences
Rise in Militancy: Article 370 was seen by Kashmiris as a marker of
their separate identity and autonomy.
o There is a possibility of widespread protests and violence as a
reaction to the dilution of Article 370.
o Terror elements in Pakistan would find Kashmir to be the most
fertile ground for breeding terrorism.
o The unrest can affect the democratic progress that has been made so
far.
Out-maneuvering Pakistan: Pakistan used 370 to wage a proxy
war, internationalise Kashmir, supporting terrorism, all that is gone now.
Way Forward
A 10-year strategy for education, employment and employability should be
deployed for uplifting Kashmir.
The Gandhian path of non-violence and peace should be adopted to solve
the legitimacy crisis in Kashmir.
The government can mitigate the challenges emanating out of Action on
article 370 by launching a comprehensive outreach programme to all Kashmiris.
In this context, Atal Bihari Vajpayee's version of Kashmiriyat, Insaniyat,
Jamhooriyat (inclusivity culture of Kashmir, humanitarianism and
democracy) for Kashmir solution, should become a cornerstone of the forces of
reconciliation in the State.
