Two-step process ends J&K’s special status
The Constitution order , effective immediately, leveraged the provisions of Article 370 of the Constitution , which gives special status and more autonomy to the state, to scrap Article 35A, which gives special privileges to the permanent residents of the state.Updated: Aug 06, 2019 06:41 IST
The Modi government’s decision Monday to revoke historical provisions enjoyed by Jammu and Kashmir (J&K), which fundamentally changes the state’s position within India’s federal structure, in the end, required not a long shot of the law, but rather a straightforward Constitution order, a simple statutory resolution, and a bill to reorganise the state.
While the moves follow the letter of the law laid down to bring about these radical changes, critics argue that doing so at a time when the state’s assembly remain suspended violates its spirit.
The Constitution order , effective immediately, leveraged the provisions of Article 370 of the Constitution , which gives special status and more autonomy to the state, to scrap Article 35A, which gives special privileges to the permanent residents of the state.
The resolution struck off all but one of the existing clauses of Article 370, which gave special exceptions for J&K. The only clause retained was one that said all provisions of the Constitution would apply to the state.
And the bill, an ordinary one meaning it does not require a two-thirds majority of Parliament, proposed the reconstitution of J&K into two Union Territories, one, J&K with a legislature; and the other, Ladakh, without.
The measures represent the most far-reaching changes to the how the state, long affected by a separatist movement, will be governed in the future.
By the end of the day, the Rajya Sabha, where the Bharatiya Janata Party (BJP) is in a minority, had approved everything , with the bill passing by a two-thirds majority.
They are certain the pass the Lok Sabha test tomorrow -- the BJP is in a significant majority in the House.
Under Article 370, laws by Parliament do not automatically apply to Jammu and Kashmir, according to conditions under which it acceded to India, something governed by the so-called Instrument of Accession. This was at the heart of the Constitution’s Article 370, enacted on October 17, 1949.
The Instrument of Accession with India originally conferred powers on the Centre only in the areas of external affairs, defence and communications as far as Jammu and Kashmir was concerned. The country then passed the Constitution (Application to Jammu and Kashmir) Order 1954, and tens of amendments to this, to enlarge the areas in which central laws could apply to the state.
Informally called the presidential order 1954, it also included a controversial Article 35A inserted into the Constitution that defines “permanent status” of residents of the state. Effectively, 35A defined who was a permanent resident and debarred non-residents from buying immovable property in the states.
Article 35A is viewed as discriminatory because it holds that the progeny of a Kashmiri woman who married a non-Kashmiri outside the state does not have inheritance rights.
The Constitution order -- the Constitution (Application to Jammu & Kashmir) Order, 2019 to use its full name -- has now replaced the 1954 order, effectively removing 35A,
The government undertook a two-step process to strike down, in one fell swoop, the longstanding legal status of Jammu and Kashmir.
The new order also made changes to Article 367, whereby the government has added a new clause (number 4), which replaces the expression “constituent assembly” of the state of Jammu and Kashmir with “legislative assembly” of the state and any reference to the state Assembly shall also be construed to be a reference to the Governor. This enabled the Centre to bypass concurrence of the state legislature for the landmark changes initiated on Monday.
Jammu and Kashmir, through Article 370, never enjoyed special status, as is widely believed, constitutional experts say. What it enjoyed were certain “temporary” provisions.
“The heading and wording of Article 370 was clear on this. Article 370, as it stood, is described by the very Constitution as temporary provision,” said constitutional expert Subhash Kashyap.
India is a case of asymmetrical federalism, meaning some states have special provisions, given their historical antecedents, which are not available to other states. Part 21 of the Constitution categorises states as either having “temporary, transitional or special provisions”. Article 370, as it stood prior to Monday, defines J&K’s exceptions as “temporary”, as opposed to a state like, say, Nagaland, in whose case “special provisions” apply.
Interestingly, clause 3 of Article 370 provides powers to the President of India to either nullify or make changes to Article 370. In other words, the article contains within it a “kill button”, so to speak. Any change however requires the concurrence of J&K Constituent Assembly, which has since been replaced by the state’s legislature. Currently, the state is governed by the Centre since it is under the President’s Rule, and the government’s understanding seems to be that the state legislature can be replaced by the Governor.
“This looks dubious because you can very well undertake modification of the presidential order of 1954. But you can’t undertake modification of something that doesn’t currently exist, which is the state Assembly,” said PDT Achary, another constitutional expert.
Achary said although J&K’s special provisions were never “special” and only “temporary”, the state legislature, under Article 370 itself, had to agree to any modification, which is what the term “concurrence” means. This could be open to legal challenges, he said.
Other experts, too, highlighted this issue, as did some members of the Opposition. The Congress’ s Abhishek Manu Singhvi pointed out on Twitter that if new states or Union Territories can be created when a state is under President’s Rule (under Article 356 of the Constitution), then the Centre could misuse this provision to pretty much bifurcate or split any state as long as it has a majority in Parliament.