Changing of the status of Jammu and Kashmir

The story so far

• The Union Home Minister introduced two statutory resolutions, one, to recommend that the President to issue a notification rendering Article 370 inoperative, and two, to accept the Jammu and Kashmir Reorganisation Bill.
• 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.

History of Articles 370 and 35A

• The Instrument of Accession accepted by Maharaja Hari Singh, ruler of the of Jammu and Kashmir, on 26 October 1947.
• It is celebrated as Accession Day annually.
• It empowers India’s Parliament to legislate in respect of J&K only on the matters of defence, external affairs and communications.
• First Presidential Order was issued on January 26, 1950 itself, with the state government’s concurrence.
• Elections for the Constituent Assembly of Jammu and Kashmir were held in September–October 1951.
• The Constituent Assembly of the State convened on October 31, 1951 for the first time.
• Second Presidential order was issued on 15 November 1952, at the request of the state government to amend article 370.
• The Government of India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the State.
• After discussions, the 1952 Delhi Agreement was signed.
• Jammu Kashmir ratified Delhi pact and accession with India in February 6, 1954.
• The 1950 Order was replaced by the Constitution (Application to Jammu and Kashmir) Order, 1954 and it came into force on 14 May 1954.

• The constitution of Jammu and Kashmir was formally adopted by a Constituent Assembly on November 17, 1956, and the Constitution entered into force on January 26, 1957.  

Provision of 1954’s Presidential order

• The Constitution (Application to Jammu and Kashmir) Order, 1954 lists the Articles and provisions that apply to J&K.
• Further, the President also listed a set of exceptions under Article 35A of the Constitution.
• This Article does not figure in the text of the Constitution of India, but figures only in the J&K’s Constitution.
• It was inserted not through Amendment but by a Presidential Order
• While the 1954 presidential order constituted a founding legal document for Jammu and Kashmir, Article 35A protected the exclusive laws of the State.
• These special measures can be altered only on the recommendation of the Sadar-i-Riyasat of Jammu and Kashmir (like King), 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”.

Articles 370 and 35A

• It is the first article of Part XXI of the Indian Constitution.
• The heading of this part is ‘Temporary, Transitional and Special Provisions’.
• The original draft was given by the Government of J & K.
• Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949.

• Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
• Another interpretation was that accession was temporary until a plebiscite.
• Article 370 says other provisions of the Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly.
• Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954.

• Article 35A is unique in the sense that it does not appear in the main body of the J&K Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I.
• Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.

How the government changed special status

• The Jammu and Kashmir Reorganisation Bill, 2019 was introduced and passed by Rajya Sabha on August 5, 2019 and passed by lok sabha on Aug 06, 2019
• 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.
• But it can be issued only with the Jammu and Kashmir government’s concurrence. 
• So, the Governor, who is now administering the State under the President’s Rule, has given his concurrence on behalf of the State government.
• The Order supersedes the 1954 Order.
• This 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 for the scrapping of Article 370 altogether.
• Therefore, a few clauses were added to Article 367 of the Indian Constitution.
• 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 interpreted as references to the Governor of Jammu and Kashmir.
• All references to the State government shall mean “the Governor”. 
• And most importantly, 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 no body to “recommend” the demise of Article 370.
• 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.
• The passage of the resolution will enable the President to declare that Article 370 has ceased to operate.

• The Second Bill envisages converting Jammu and Kashmir into a Union Territory with a legislature, and carve out Ladakh region as another Union Territory, but without a legislature.

Some Misconception about J&K

I. Status of Article 370 

• President promulgated Constitution (Application to Jammu and Kashmir) Order, 2019, which states that provisions of the Indian Constitution are applicable in the State.
• This effectively takes away the autonomy of the State.
• However, Article 370 is still in force. 
• In fact, the Presidential Order exercises the powers conferred by clause (1) of Article 370 of the Constitution.
• So far, the Parliament had only residuary powers of legislation in J&K such as enacting laws related to anti-terror, taxation on foreign and inland travel, and communication.
• Now every law enacted by Parliament is applicable in Jammu and Kashmir and Ladakh as well.
• Also, The Supreme Court’s five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision. 

II. Status of separate flag 

• Jammu and Kashmir had its own flag since 1952.
• The Government protocol mandates unfurling both the national flag as well as the State flag at all public events.

• After the presidential order, only the national flag will have to be hoisted.

III. Separate Constitution

• Article 370 allowed the state of Jammu and Kashmir to have its own Constitution.
• Laws passed by the Parliament were applicable in the State, only after the State government gives its concurrence.
• Now the separate Constitution ceases to exist.

IV. Dual citizenship

• Kashmiris is a term referred to the ethnic group native to the Kashmir Valley.
• Over generations, ethnic Kashmiris have migrated to several parts of the world, including Pakistan.
• India does not allow dual citizenship, including to Indian Kashmiris.
• The 'dual citizenship' of Kashmiris is with reference to Article 370 under which they are considered as citizens of India as well as citizens of Kashmir.
• Now this provision too ceases to exist.

V. only on Kashmir Non-Kashmiris couldn't own land 

• Article 35A prohibited non-Kashmiris from owning land in the region.
• However, Jammu and Kashmir is not the only State to have this law.
• Land laws vary from State to State. 
• For example, in Karnataka, only an agriculturist can purchase agricultural land.
• Parts of Assam, Tripura, Himachal Pradesh, Arunachal Pradesh, Nagaland, and Andaman & Nicobar Islands have restrictions on outsiders buying land.
• Now, People from anywhere in India would be able to buy property and permanently settle in that state.

VI. RTI Act 

• Jammu and Kashmir have had a Right to Information Act since 2004, a year before the Central RTI Act came into existence.
• However, the State didn't approve the Central legislation for a long time.
• In 2007, the State's RTI Act was amended on the lines of the Central Act.

VII. Duration of J&K Assembly

• As per the J&K Constitution, Assembly elections are held in the State once every six years.
• Now, Assembly elections will be held once in five years, like the rest of India.

 VIII. J&K cannot enact separate laws now

• The presidential order only eliminates the need to pass every Indian law once again in the Jammu and Kashmir Assembly.
• However, the Assembly can pass Bills and subject to the approval of the Lt. Governor of the Union Territory, it will become a law.
• Just like other States, the J&K Assembly too can override a Central law by amending it, subject to the approval.
• For example, Puducherry amended the Prevention of Cruelty to Animals Act, 1960, to allow Jallikattu in its region.

IX. Reservations were not applicable

• Reservations in the State are governed by the Jammu and Kashmir Reservation Act, 2004.

• Unlike the rest of India, reservation is provided only in appointment and admission in professional institutions to SC, ST and socially-backward classes.
• There is no reservation for minorities.
• A recent Ordinance extended the benefits of reservation to people living in Pakistan-occupied Kashmir as well.

X. Woman from J&K marries out of the State, she loses citizenship

• According to Article 35-A, a Kashmiri woman loses property rights if she marries a non-Kashmiri.
• She continues to be a 'Kashmir citizen.' The issue gets complicated with her children.
• Her children are not considered 'permanent residents', if their father is not one.
• Even if they live in Kashmir, it is left to the discretion of the Jammu and Kashmir government to grant the 'permanent residents' status.

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