Article 370 of the Indian Constitution gave special status to Jammu and Kashmir conferring it with the power to have a separate constitution, a state flag and autonomy over the internal administration of the state. The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian Constitution that should be applied to the state or to abrogate the Article 370 altogether. After consultation with the state’s constituent assembly, the 1954 Presidential Order was issued, specifying the articles of the Indian Constitution that applied to the state. Since the Constituent Assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
This Article, along with Article 35A, defined that the Jammu and Kashmir state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu & Kashmir.
On 5 August 2019, the Government of India issued a constitutional order superseding the 1954 order, and making all the provisions of the Indian Constitution applicable to Jammu and Kashmir based on the resolution passed in both houses of India’s Parliament with two-third majority. As a result all clauses of Article 370 except clause 1 were made inoperative. In addition, the Jammu and Kashmir Reorganization Act was passed by the parliament, enacting the division the state of Jammu and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The reorganization took place on 31 October 2019.
Is Article 370 Deleted?
The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.
The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadar-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers.
This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself. Article 367 is meant to act as a guide, it helps the interpretation of certain laws. It is to this article that the Presidential Order adds a new clause to help interpret provisions applicable to the state of Jammu and Kashmir. This clause alters the interpretation of Article 370, switching out the words “constituent assembly” with “legislative assembly” in the proviso to clause 3 of Article 370.
Clause 3 of Article 370 made it clear that if the President wishes to change anything within Article 370, he needs the recommendation of Jammu and Kashmir’s Constituent assembly. But the J&K Constituent assembly was dissolved in 1957, so it could not possibly give a recommendation. The Constitution (Application to Jammu and Kashmir) Order, 2019 changes that language to make it the legislative assembly, rather than the constituent assembly.
Still, the clause mandates that the President get the approval of the legislative assembly. But Jammu and Kashmir did not have a governor in August 2019, since it’s legislative assembly was dissolved in 2018 and replaced with first Governor’s rule and later, President’s rule. So how did the government get around that?
When a state is under President’s rule, the power to make laws for the state is vested in the Indian Parliament. Jammu and Kashmir is currently under President’s rule. So effectively, the government’s move allows Parliament to act on behalf of the Jammu and Kashmir assembly to change the character of the state.
Is the Division Unconstitutional?
The petition filed in the Supreme Court on August 22, 2019 by six citizens challenging the constitutional validity of the president’s amendments to Article 370 and the J&K Reorganization Bill has claimed that these orders were unconstitutional, violative of the basic structure of the Constitution and violative of fundamental rights. The petition has listed several reasons why the petitioners believe the reading down of Article 370 and the reorganization of the state were bad in law.
It states that Article 370(3) prescribes the conditions under which Article 370 would cease to operate. It says that Article 370 can cease to operate only on the recommendation of the Constituent Assembly of the state and thereafter a public declaration by the president. However, the petition charged, there has been no such recommendation by the Constituent Assembly before such a declaration was made by the President of India.
Referring to the Presidential Order 2019 relating to Jammu and Kashmir, through which an amendment has been made to Article 367 of the Constitution of India by which the reference to the expression “Constituent Assembly of the State” has been read as “Legislative Assembly of the State”, the petition stated that this amendment is a colorable exercise of power. It has claimed that the amendment seeks to achieve indirectly what cannot be achieved directly. It seeks to force an interpretation of Article 370(3) which would not be possible on a plain reading of the terms of the Article 370(3) of the Constitution of India. At present, there is no Constituent Assembly which is in existence and hence a fundamental condition for the effectuation/invocation of Article 370(3) is absent.
The petition also points out that the Legislative Assembly of Jammu and Kashmir does not have the power to alter the State’s relationship with India on account of Article 147 of the Constitution of Jammu & Kashmir (amendment of Constitution of J&K). It has also stated that this act would undermine the very basis on which the (erstwhile) state of Jammu & Kashmir was integrated into India. Both the Instrument of Accession as also Article 370 envisage a special autonomous status of the State of Jammu & Kashmir which could only be changed upon a recommendation of the Constituent Assembly.
The present action, the petition noted, which has been effectuated without ascertaining the will of the people either through its elected Government or legislature or public means such as referenda, violates the basic principle of democracy, federalism, and fundamental rights. At present the matter is pending before the Supreme Court of India.
Salient Features of the Jammu and Kashmir Reorganization Act, 2019
• This Act divides Jammu and Kashmir into two UTs i.e. the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir.
• Jammu and Kashmir will have a legislature whereas Ladakh will be a UT without legislature.
• The Union Territory of Ladakh will have Kargil and Leh districts, and the Union Territory of Jammu & Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir
• The Reorganization Bill, 2019 envisages total number of Legislative Assembly seats 107 in Jammu and Kashmir. Out of these 107 seats 24 seats will remain vacant because these seats are in the Pakistan occupied Kashmir (PoK) which is illegally occupied by the Pakistan. After delimitation the maximum strength of the legislative assembly of the UT of Jammu and Kashmir will be enhanced to 114.
• Some seats will be reserved for scheduled castes and scheduled tribes in proportion to their population in the union territory of Jammu and Kashmir. In addition to this, the Lieutenant Governor may nominate two women members if they are not adequately represented.
• Powers related to police and public order shall remain with the union government.
• The Union Territory of Jammu and Kashmir will have a Council of Ministers to aide and advise the Lieutenant Governor. The size of council of Minister will not be more than 10% of the total number of members in the Assembly.
• The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Jammu & Kashmir and Ladakh. In addition to this there would be an Advocate General to provide legal advice to the government of the Union Territory of J&K.
• The Legislative Council of the state of Jammu and Kashmir will be abolished. Upon dissolution, all Bills pending in the Council will lapse