POLITY

POLITY & CONSTITUTION

REMOVAL OF ARTICLE 370 AND 35A

Why in news?

The Centre decided to end the special status given to Jammu and Kashmir (J&K) under Article 370. 

More on news

• President of India in “concurrence” with the “Jammu and Kashmir government” promulgated Constitution (Application to Jammu and Kashmir) Order, 2019 which states that provisions of the Indian Constitution are applicable in the State. This effectively means that all the provisions that formed the basis of a separate Constitution for Jammu and Kashmir stand abrogated. With this, Article 35A is scrapped automatically.

• Along with this, a statutory resolution was approved by the Parliament which – invoking the authority that flows from the effects of Presidential Order – recommended that the President abrogate (much of) Article 370.

• Also, Jammu and Kashmir Reorganization Act, 2019 was passed by the Parliament. Jammu & Kashmir (J&K) was re-organised into two Union Territories - J&K division with a legislative assembly and the UT of Ladakh without having an assembly.

Article 370 and Article 35A – A brief background

• The peculiar position of Jammu and Kashmir was due to the circumstances in which the State acceded to India. The Government of India had declared that it was the people of the state of J&K, acting through their constituent assembly, who were to finally determine the constitution of the state and the jurisdiction of government of India.

• The applicability of the provisions of the Constitution regarding this State were accordingly, to be in nature of an interim arrangement. This was the substance of the provision embodied in Art. 370 of the Constitution of India.

• Art. 370 had “temporary provisions with respect to the State of Jammu and Kashmir” which gave special powers to the state allowing it to have its own Constitution.

• According to article 370, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws.

• Article 35A of the Indian Constitution, which stemmed out of Article 370, gave powers to the Jammu and Kashmir Assembly to define permanent residents of the state, their special rights and privileges.

How the Scrapping of Article 370 and 35A became possible?

• President 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 in concurrence with the Jammu and Kashmir government.

• The order amended Article 367. Article 367 contains guidance on how to read or interpret some provisions. The amended Article declares that “the expression ‘Constituent Assembly of the State…’ in Article 370 (3) shall be read to mean ‘Legislative Assembly of the State’. Article 370(3) provided that the Article 370 was to be amended by the concurrence of the Constituent Assembly. However, because of the amendment, it can now be done away by a recommendation of the state legislature.

• In other words, the government used the power under 370(1) to amend a provision of the Constitution (Article 367) which, then, amends Article 370(3). And this, in turn, becomes the trigger for the statutory resolution - Resolution for Repeal of Article 370 of the Constitution of India. As Jammu and Kashmir is under the president rule, concurrence of governor is considered as “Jammu and Kashmir government”.

Scrapping Article 370: Constitutional and legal challenges

Petitions have been filed in the Supreme Court challenging the recent action of the Union Government on Jammu and Kashmir, the following legal issues may receive attention in the course of judicial deliberations.

• Legality of the Presidential order: Article 370 itself cannot be amended by a Presidential Order. Even though the Order amends Article 367, the content of those amendments, however, do amend Article 370. And as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. Therefore, legality of the order – insofar as it amends Article 370 – is questionable.

• Misusing the President Rule and Making Governor as a substitute for the elected assembly: The governor is the representative of the Union Government in the State. In effect, the Union Government has consulted itself. o Also, President’s Rule is temporary and is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state- taken without the elected legislative assembly, but by the Governor, are inherently problematic.

• Equating state assembly with constituent assembly: The difference is that the one has to exercise its powers as per the constitution, while the other develops the constitution. This distinction that is at the heart of India’s basic structure doctrine that prevents certain constitutional amendments on the ground that Parliament, which exercises representative authority, is limited and cannot create a new constitution and thereby exercise sovereign authority.

• Going against the Jammu and Kashmir’s Constitutional position: Presidential order has assumed that legislative assembly has power to scrap Article 370. But Article 147 of the Jammu and Kashmir Constitution prohibits such a move. The Article makes it clear that any changes to the Jammu and Kashmir Constitution needs the approval of two-thirds of the members of the legislative assembly.

Possible implications of the move

• Complete applicability of Indian Constitution to J&K

• No separate flag

• Tenure of the J&K assembly to be five years, instead of the earlier six years.

• Replacing Ranbir Penal Code (the separate penal code for J&K) with the Indian Penal Code.

• Article 356 under which the President’s Rule can be imposed in any state, will also be applicable to the UT of Jammu and Kashmir.

• The central quota laws in school-college admissions and state government jobs will apply.

• People from other states may be able to acquire property and residency rights.

• RTI would be made applicable.

• Certain provisions of the J&K Constitution which denied property rights to native women who marry a person from outside the State may stand invalidated. 

Conclusion

When the Constituent Assembly of J&K ceased functioning, a long-standing debate about the nature of Article 370 started. Before dissolution, the Constituent Assembly neither recommended abolishing Article 370 nor did they advocate for it to be permanent. Yet, it remains to be seen whether the manner in which Article 370 has been repealed stands the test of judicial review.

Article 370 was about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. However, there are concerns that it neither served the common people in J&K nor did it facilitate J&K’s integration with the rest of India. Therefore, one must hope that the move will bring a new dawn of development and inclusion for Jammu and Kashmir, which will give a voice to those who were deprived and marginalised.