J&K loses its Special Status and Statehood
Related Topics: Article 370, Article 35A, Article 367, Post Independence Consolidation
Why in News
Ending Jammu & Kashmir’s special status in the Indian Union, Central government extended all provisions of the Indian 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.
The Union Home Minister introduced two statutory resolutions, one, to recommend that the President issue a notification rendering Article 370 inoperative, and two, to accept the Jammu and Kashmir Reorganization Bill
Rajya Sabha has passed J&K Reorganisation Bill 2019 which will effectively bifurcate state of Jammu and Kashmir into two Union Territories – Jammu and Kashmir with a legislature and Ladakh without legislature.
Jammu and Kashmir enjoyed special status under Article 370 of the Constitution of India.
This Article describes it as a temporary provision and that it will cease to be operative if the President issues a public notification to that effect. However, prior to that, a recommendation is necessary from the Constituent Assembly of Jammu and Kashmir.
As a result of Article 370, Jammu and Kashmir had its own Constitution, and all laws passed by Parliament will not be applicable to the State, unless the State government gives its concurrence.
The President is empowered to decide what provisions of the Constitution of India would be applicable to the State and what are the exceptions, but with the State government’s concurrence.
The Constitution (Application to Jammu and Kashmir) Order, 1954, lists the Articles and provisions that apply to J&K.
The President also listed a set of exceptions under Article 35A of the Constitution.
While the 1954 presidential order constituted a founding legal document for Jammu and Kashmir, Article 35A protected the exclusive laws – such as the bar on outsiders buying property and women marrying non-Kashmiris losing their property rights of the State.
These special measures can be altered only on the recommendation of the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers, or by the “Constituent Assembly” of that State.
As of now, there is no “Constituent Assembly”.
| Article 367
They contain guidance on how to read or interpret some provisions.
The new clauses say, when applicable to Jammu and Kashmir, all references to the ‘Sadar-i-Riyasat’, acting on the aid and advice of the Council of Ministers, will be construed as references to the Governor of Jammu and Kashmir. All references to the State government shall mean “the Governor”.
The reference to the “Constituent Assembly” in a provision to Article 370 (3) has been amended to read “Legislative Assembly of the State”
This is the provision that says the President can declare that Article 370 is no more operative only on the recommendation of the Constituent Assembly.
As there is no Constituent Assembly in existence now, there is nobody to “recommend” the demise of Article 370. Therefore, the State Assembly has to play that role.
| President’s Rule
Here, the government has made use of the fact that Jammu and Kashmir is under President’s Rule.
Under the Proclamation issued under Article 356 of the Constitution, by which the President takes over the administration of a State, Parliament usually performs the legislative functions of the State Assembly.
For instance, when a State is under Central rule, the budget allocations for that State are voted in Parliament in the absence of the Assembly.
What happened to the Special Status now?
President Ram Nath Kovind issued a presidential order under Article 370(1) of the Constitution.
This clause enables the President to specify the matters which are applicable to Jammu and Kashmir.
As it can be issued only with the Jammu and Kashmir government’s concurrence, the notification uses the words “with the concurrence of the Government of the State of Jammu and Kashmir”.
This presumably means the Governor, who is now administering the State under President’s Rule, has given his concurrence on behalf of the State government.
The President’s notification of the Constitution (Application to Jammu and Kashmir) Order of 2019 of August 5 amends Article 370 of the Indian Constitution and scraps its 65-year-old predecessor, The Constitution (Application to Jammu and Kashmir) Order of May 14, 1954.
It effectively means that all the provisions that formed the basis of a separate “Constitution” for Jammu and Kashmir stand abrogated.
The Order declares that all the provisions of the Constitution of India, shall apply to Jammu and Kashmir too.
However, some special measures were still needed and for that purpose, few clauses were added to Article 367 of the Constitution(Refer the box).
The issuance of the Presidential Order has set the stage for the abrogation of Article 370.
J&K Reorganisation Bill 2019
November 1, 1858
Half of Indian territories were princely states at the time of “Queen Victoria’s proclamation” which effectively said that the queen would govern India.
J&K was one such princely state ruled by kings of the Dogra lineage under the British who were the ultimate power.
There were 565 princely states at the time of independence. The king of J&K did not sign the Instrument of accession in favour of either India or Pakistan and remained indecisive.
Barely months after Independence, armed tribesmen invaded Kashmir from the Pakistan border. King Hari Singh wrote a letter to Lord Mountbatten, Governor-General of India, seeking help.
He attached a signed Instrument of Accession to India and Governor-General of India signed the acceptance. Thus, defence, external affairs and communications of J&K were transferred to India’s governance.
Hari Singh made a proclamation to convene a National assembly and work out a new constitution for the State.
Sheikh Abdullah was appointed as Prime Minister of an interim government in J&K.
June 20, 1949
Hari Singh, through a proclamation, transferred powers to his son Yuvraj Karan Singh Bahadur.
November 26, 1949
Indian Constitution was adopted.
January 26, 1950
The Constitution came into effect and India became a democratic Republic.
Yuvraj Karan Singh issued a proclamation for the election of a constituent assembly in the state. J&K National Conference won 75 out of 75 seats.
PM Sheikh Abdullah was dismissed by Karan Singh. Bakshi Ghulam Mohammed was appointed as PM and Sheikh Abdullah wwas imprisoned.
Constituent Assembly of J&K ratified the State’s accession to India. Unlike other princely states, which accepted Indian Constitution in totality, J&K’s relationship to India was guided only based on the Instrument of Accession.
About Article 370
It was included in the Constitution on October 17, 1949.
Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution.
It restricts Parliament’s legislative powers in respect of J&K.
For extending a central law on subjects included in the Instrument of Accession (IoA) mere “consultation” with the state government is needed.
But for extending it to other matters, “concurrence” of the state government is mandatory.
About Article 35 A
Article 35A empowered the J&K state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
It protected the exclusive laws – such as the bar on outsiders buying property and women marrying non-Kashmiris losing their property rights – of the State.
It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to J&K) Order, 1954 – issued by the President of India on 14 May 1954.
This was an exercise of the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of J&K.