Modi government has finally dropped the big Kashmir bomb today, with Home Minister Amit Shah moving to revoke two key constitutional provisions — Article 370 and Article 35(A) — that give the state of Jammu & Kashmir a host of special rights.
Some provisions of the Article 370 have been diluted over time. In contrast, the Article 35A till now had remained unchanged.
The move came amid mounting tension in the state where the government, in a midnight swoop, had put the top political leadership under detention and restricted their movement. It also suspended telecom/internet services in the state.
With the situation now on a knife’s edge, here is what the momentous decision would mean for the restive state and for the country in general.
Under this article, the centre needs the state government’s concurrence to apply laws — except in defence, foreign affairs, finance and communications.
What Article 370 means
It means the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression.
The Article 370 — which comes under Part XXI of the Constitution, which deals with “Temporary, Transitional and Special provisions” — grants J&K a special autonomous status. Constitutional provisions that are applicable to other Indian states are not applicable to J&K.
The provision was drafted in 1947 by Sheikh Abdullah, the then prime minister of J&K appointed by Maharaja Hari Singh and Jawaharlal Nehru. Abdullah had argued that Article 370 should not be placed under temporary provisions; he instead wanted ‘iron-clad autonomy’ for the state. The centre, however, didn’t grant his wish.
What Article 35(A) means
Article 35A allows the state legislature to define the Jammu and Kashmir’s permanent residents. The article had been inserted via the Constitution (Application to J&K) Order, 1954. It was issued by the then President Rajendra Prasad under Article 370 on PM Nehru’s advice.
The state’s Constitution, at the time of its adoption in 1956, defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident for 10 years, and has lawfully acquired immovable property.
What this clause means is that no outsider can now own property in J&K or get a state job.
The article is also known as the Permanent Residents Law. Among other things, it deprives the state’s female residents of property rights if/when they marry an ‘outsider’. The provision also extends to children born of any such women.
What will happen to J&K now
After Kashmir’s special status is gone, people from anywhere in India be able to buy property and permanently settle in the state. This has fuelled fear in the mind of Kashmiris — they think it would lead to the state’s demographic transformation from majority Muslim to majority Hindu.
A separate Union Territory will be created for Jammu & Kashmir with legislature, Amit Shah has revealed via a notification. “Keeping in view the prevailing internal security situation, fuelled by cross-border terrorism in the existing state of Jammu & Kashmir, a seperate Union Territory is being created”, the notification said.
Under the notificaiton, the Ladakh region is also being given the status of a Union Terrority, without legislature. “The Ladakh division has a large area but is sparsely populated with a very difficult terrain. There has been a long-pending demand of people of Ladakh to give it a Union Territory status to enable them to realise their aspiration”, it said.
Following Amit Shah’s proposal, President Ram Nath Kovind promulgated Constitution (Application to Jammu and Kashmir) Order, 2019, stating that the provisions of the Indian Constitution will henceforth be applicable to J&K.
The Constitution (Application to Jammu and Kashmir) Order, 2019 comes into force “at once”, and shall “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954”.
The presidential promulgation says: “All the provisions of the Constitution shall apply in relation to the state of Jammu and Kashmir.”
For the purpose, a clause 4 has been added to Article 367 which will introduced four changes.
“The references to the person for the time being recognised by the president on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the state for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir”, said the order.
It added: “References to the Governor of Jammu and Kashmir shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”.
The order further said that in the proviso to clause (3) of Article 370, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.