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Wednesday, Nov 13, 2019

Decoding Centre’s J-K move on Article 370 in 9 steps

Shah moved a resolution for the President to issue a notification that would amend Article 370 — using the article’s own clause 3 — to state that all provisions of the Indian Constitution will now apply to Jammu and Kashmir, irrespective of the state’s own constitution or “any other instrument, treaty or agreement...”

india Updated: Aug 06, 2019 01:48 IST
HT Correspondent
HT Correspondent
Hindustan Times, New Delhi
Union Home Minister Amit Shah arrives at Parliament House during the ongoing Budget Session, in New Delhi, Monday, Aug 5, 2019. Shah moved statutory resolutions in the Rajya Sabha to revoke Article 370 in Jammu & Kashmir.
Union Home Minister Amit Shah arrives at Parliament House during the ongoing Budget Session, in New Delhi, Monday, Aug 5, 2019. Shah moved statutory resolutions in the Rajya Sabha to revoke Article 370 in Jammu & Kashmir. (PTI)
         

Union home minister Amit Shah sought to make Jammu and Kashmir and Ladakh the newest union territories. Doing this, however, required complex legal maneuvering. A look at how this was executed.

1) Amit Shah rose to place four matters before the Rajya Sabha, including a resolution that effectively nullified Article 370, which granted special powers to the state, and a bill that bifurcated it. The state of Jammu and Kashmir, which became a part of Union of India on 26 Oct 1947, through an Instrument of Accession signed by the then ruler Hari Singh, had its own Constitution and framed its own laws in all areas except defense, external affairs and communications.

2) The four matters before Upper House

Constitution (Application to Jammu and Kashmir) Order 2019 – 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

Jammu and Kashmir (Reorganization) Bill, 2019

Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019

3) What made J&K different?

Unlike other states, it had its own penal code, and specific laws for transfer of property, inheritance, personal laws, benami transactions, RTI etc. While several items in the Union and Concurrent lists applied to J&K, parliament needed the state to ratify them.

4) What’s Article 370?

Introduced in the Constitution in 1949, it expanded the state’s powers: any law passed by Parliament could apply as long as they formed part of the Instrument of Accession, and only after consultation with the state government. Over time, this article was used to include several subjects, other than defence communications and foreign affairs that the Centre could legislate on.

5) The ‘kill switch’

Clause 3 of the article stated:

“The President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

A Constitution order signed by the President could scrap the article, but it required the state’s constituent assembly to recommend this.

6) First came the presidential order

Officially called the Constitution(Application to Jammu & Kashmir Order) 2019, and signed by President Ram Nath Kovind, the order superseded the Constitution (Application to Jammu & Kashmir Order) 1954, and included two main points:

It added a clause to Article 367, which clarified that references to representative of the President, as well as the state government could be construed as references to the Governor of Jammu and Kashmir

The order will supersede (Application to Jammu and Kashmir Order) 1954, effectively nullifying Article 35A, which empowered the state to define permanent residents, giving them special rights and privileges.

7) Then came the statutory resolution

Shah moved a resolution for the President to issue a notification that would amend Article 370 — using the article’s own clause 3 — to state that all provisions of the Indian Constitution will now apply to Jammu and Kashmir, irrespective of the state’s own constitution or “any other instrument, treaty or agreement...”

8) Why was this needed?

As per clause 3, Article 370 could have only been scrapped after the state’s constituent assembly recommended it. Currently, governor Satya Pal Malik is in-charge of the state, after the ruling coalition of Peoples Democratic Party and the Bharatiya Janata Party fell in 2018. Hence, the clause added to Article 367 ensured that the Governor could be counted as the state, on whose recommendation the new presidential order was passed.

9) So what changes for Jammu and Kashmir now?

The effective scrapping of Article 370 brings Jammu and Kashmir completely under Indian law, like any other state or UT. Under the IoA, only matters of defence, communications and external affairs were under the Centre. In addition, the 1954 Presidential order also created Article 35A, which empowered the state to define permanent residents and provide them special rights and privileges. Now, Article 35 stands nullified.