Jammu and Kashmir: Now a territory of the Union
The move has triggered a debate among constitutional experts, with many experts asking if Article 367 can indeed be amended through a presidential order.Updated: Aug 06, 2019 01:09 IST
In a move planned with political and legal precision, and complete suspense, the central government led a move in the Rajya Sabha on Monday to end the special status of Jammu and Kashmir (J&K). By the end of the day, Article 370 and Article 35A, which have, for close to seven decades, defined the state’s relationship with the Union, were effectively rendered null and void.
It also pushed through a bill in the Rajya Sabha to reorganise the state. J&K has now been bifurcated; Jammu and Kashmir will be a Union Territory (UT) with a legislature; and Ladakh will be a separate UT without a legislature. The resolutions are to be tabled in Lok Sabha on Tuesday, where the ruling National Democratic Alliance (NDA) has an overwhelming majority.
The move came after a week of intense security build-up in the state — additional paramilitary troops were deployed, the Amarnath Yatra was cut short, tourists and non-Kashmiri students were advised to leave, Kashmiri leaders, including former chief ministers Omar Abdullah and Mehbooba Mufti, were detained, internet and phone connections were suspended, and movement severely curtailed. The actions caused panic in the Valley and prompted speculation about whether the government was pre-empting a terror threat from across the border, or seeking to bring in drastic legislative changes.
Monday provided the answer.
The day began with a Cabinet meeting at 9.30am at Prime Minister Narendra Modi’s residence in New Delhi’s Lok Kalyan Marg. Union home minister Amit Shah then headed to Parliament, where he began speaking in the Rajya Sabha at 11am. While Opposition leaders first sought a response to the unfolding situation in the Valley and the detention of Kashmiri leaders, Shah said he would address all the concerns.
He then moved four motions. The first was the Constitution (Application to Jammu and Kashmir) Order, 2019, which superseded the Constitution (Application to Jammu and Kashmir) Order of 1954. The 1954 order gave rise to Article 35A, which defined and prioritised permanent residents. The order also enabled all provisions of the Indian Constitution to be applied to Kashmir. With this, not only was the supremacy of the Indian Constitution and its laws reinforced, but the special provisions which gave the state a distinct constitutional identity, removed.
The order also added a clause to Article 367 of the Constitution — whereby it said that references to the Government of Jammu and Kashmir would be construed as the governor of the state (acting on the advice of a council of ministers); and the reference to the constituent assembly of Jammu and Kashmir of Article 370 would now read legislative assembly of the state.
The second was a statutory resolution to recommend to the President to issue a notification, using clause 3 of Article 370, to declare that all clauses of Article 370 would cease to be operative and that all provisions of the Indian Constitution would apply to the state of Jammu and Kashmir.
Clause 3 empowered the President to do so, but only on the recommendation of the constituent assembly (CA) of Jammu and Kashmir. This was overcome by the earlier order, which replaced the CA with the state legislature, and empowered the governor.
Together, these two moves mean that J&K will no longer have its own flag and own constitution; Indian laws — from the penal code to property and taxation — will now be applicable. It also paves the way for citizens from the rest of the country to be able to exercise rights to move, settle, and purchase property in J&K.
Shah then introduced the Jammu and Kashmir (Reorganisation) Bill, 2019. The new Ladakh UT will include Leh and Kargil districts; and the remaining districts of the state will constitute the J&K UT. The final bill was the Jammu and Kashmir Reservation (Second Amendment) Bill 2019, which enabled reservations for economically weaker sections to be extended to the state.
Shah’s proposals caused a massive stir in the House and outside. The treasury benches erupted with applause and cheers, and its supporters outside lauded Prime Minister Narenda Modi and Shah’s courage for fulfilling a key ideological goal and manifesto promise of the Bharatiya Janata Party (BJP) to integrate the state fully into the nation. Jitendra Singh, minister of state in the Prime Minister’s Office, said, “This will be known as the day of redemption, as the day of rejuvenation.”
But the Opposition was not pleased. A furious Ghulam Nabi Azad, leader of the Opposition in the Rajya Sabha and a former CM of J&K, led the charge for the Congress: “In my political life, I had never even imagined that the state which is India’s crown, one day that head will be chopped off.” He warned that the move would not integrate, but in fact had laid the foundations for disintegration.
The move also provoked howls of outrage from Pakistan, which has fought four wars with India and continues to engage in a shadow war in Kahsmir with the use of terrorists. It asked the Indian government to “halt and reverse” its decision to revoke the special status of Jammu and Kashmir, contending such a unilateral step cannot change the state’s status as an “internationally recognised disputed territory”.
Foreign secretary Sohail Mahmood summoned Indian envoy Ajay Bisaria to the foreign ministry to convey a “strong demarche” or formal diplomatic representation on actions taken by India.
The response from Kashmir was strong too. With most of the state under a blackout, little information percolated out. But former Jammu and Kashmir chief minister Mehbooba Mufti tweeted, “GOI’s intention is clear & sinister. They want to change demography of the only Muslim majority state in India, disempower Muslims to the extent where they become second class citizens in their own state.” Another former CM, Omar Abdullah, said, “Government of India (GOI)’s unilateral and shocking decisions today are a total betrayal of the trust that the people of Jammu & Kashmir had reposed in India when the state acceded to it in 1947. The decisions will have far-reaching and dangerous consequences. This is an aggression against people of the State as had been warned by an all-parties meeting in Srinagar yesterday.”
But the government sought to allay apprehensions. “Article 370 is the biggest hurdle to normalcy in the state,” Shah said, promising to make J&K among the most developed states in India.
The Opposition fractured in Parliament. Congress’s own chief whip in the house, Bhubaneshwar Kalita, resigned from the party disagreeing with its position on Article 370. The Bahujan Samaj Party and the Aam Aadmi Party, in surprise moves, backed the government — as did the Telangana Rashtriya Samithi, Biju Janata Dal, YSR Congress Party, and AIADMK, among others. One hundred and twenty-five MPs voted in favour of the Reorganisation Bill, while only 61 voted against it.
The move has triggered a debate among constitutional experts, with many experts asking if Article 367 can indeed be amended through a presidential order. Mohan Parasaran, a senior advocate and a former solicitor general of India, noted, “An amendment to the Constitution may only be done by recourse to Article 368 by introducing a Bill, in that regard, in the Parliament and being passed in both the houses by a majority of 2/3rd of its members present and voting and thereafter the Bill receiving the assent of the President. As the amendment to Articles 367 and 370 are the fulcrum of the Presidential Order, question may arise as to whether such amendments can be made through a circuitous manner without resort to Article 368 and whether such an Order would suffice in light of the spirit behind Article 370.”
But beyond the legal complexities — and there are indeed complexities which could well end up seeing a challenge in court — the government’s move on Monday on Kashmir was fundamentally political. Over the next few days and weeks, observers will closely track developments in Delhi but also more importantly Kashmir, where the response has remained muted because of the clampdown. Observers believe that managing the fallout in the Valley will now be the government’s next big challenge.