Jammu and Kashmir: Article 370, Article 35(A), Resolutions, Jammu and Kashmir Reorganisation Bill and all other developments

Headline : J&K loses its special status, divided into two UTs

Details :

Telegram: https://t.me/UpscExpress

The News:

  • In a historic decision, the Indian government has changed the terms of engagement with Jammu and Kashmir by doing away with the special status enjoyed by the state under Article 370scrapping Article 35A and splitting the state into two UTs of J&K and Ladakh.


Background: Special status to Jammu and Kashmir

  • Following an invasion from tribesmen and Army men from Pakistan, Raja of J&K Hari Singh signed the Instrument of Accession (IoA) with India on October 26, 1947.
  • Governor General Lord Mountbatten accepted it with following conditions:
    • Powers to the parliament to legislate in respect of J&K only on Defence, External Affairs and Communications.
    • Clause 5 of IoA: It cannot be varied by any amendment of the Act or of Indian Independence Act unless such accepted by the king by a supplementary Instrument.
    • Clause 6 of IoA: It disallowed the making of laws to acquire land in the state for any purpose but permitted the king to do so for the Dominion of India for a law applicable to the state.
    • Clause 7of IoA: No future Constitution of India (which was still to be written) could be imposed on the state.
  • In 1950, in the original Constitution of India, J&K was listed as a Part B state, along with theother princely states that had merged by Instruments of Accession, and Hyderabad and Mysore.
  • Party B states were then abolished and J&K was by an amendment of the Constitution put into Article 1 as India’s 15th state and irrevocably part of the “territory of India”.
  • India’s stated policy regarding IoA was that wherever there was a dispute on accession, it should be settled in accordance with the wishes of people (Plebiscite).
  • In 1975, Sheikh Abdullah came to an agreement with Prime Minister Indira Gandhi. As per the agreement, in return for giving up his demand for a plebiscite, special status for J&K was allowed to continue and Sheikh Abdullah became chief minister.
  • Jammu and Kashmir enjoyed special status under Article 370 of the Constitution of India.

Article 370:

  • Article 370 was incorporated in Part XXI (temporary provisions with respect to the State of Jammu and Kashmir) of the Constitution.
  • 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.
  • It lays down that only two Articles would apply to J&K: Article 1, which defines India, and Article 370 itself.
  • 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 Union of India could legislate/act only in defence, foreign affairs and communications.

Procedure for removal of Article 370:

  • This Article describes it as a temporary provision .
  • Article 370(3) permits deletion by a Presidential Order, which has to be preceded by the concurrence of J&K’s Constituent Assembly.
  • However, the J&K constituent Assembly was dissolved on January 26, 1957.
  • In the absence of the assembly, the governor’s consent is considered to fulfil the requirement.

Article 35A:

  • Article 35A stems from Article 370 and was incorporated in the constitution by a presidential order under article 370 in 1954 on the advice of the Cabinet.
  • Article 35-A provides special rights and privileges to permanent residents of Jammu & Kashmir.
  • Article 35A gives the J&K Legislature, full freedom to decide the ‘permanent residents’ of the State and grant them special rights and privileges in:
    • State public sector jobs
    • Acquisition of property in the State
    • Scholarships and other public aid and welfare programs
  • The provision also provides that any act of the State legislature coming under the ambit of Article 35A cannot be challenged for violating the Indian Constitution or any other law of the land.

Note: Article does not figure in the text of the Constitution of India, but figures only in the J&K’s Constitution.


News Summary:

  • The Union Home Minister introduced, two special resolutions and a Bill creating the Union Territories of Jammu & Kashmir and Ladakh through the Rajya Sabha.


Resolution 1: Constitution (Application to Jammu & Kashmir) Order, 2019

  • The President used his powers under Article 370 to issue the 2019 Order, which will supersede the previous Presidential Order of 1954.
  • The new order makes the entire Constitution of India applicable to the state of Jammu and Kashmir. This means it effectively ends the special status that had been granted to J&K by stating that all the provisions of the Indian Constitution, as also its amendments, shall now apply to the state of Jammu and Kashmir.
  • Article 35A, making distinction between the permanent residents of Jammu and Kashmir and the outsiders, will also cease to have any effect.
  • Under Clause 1 of Article 370, President made all provisions of the Constitution effectively applicable to J&K.

Resolution 2: Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}

  • Under article 370(3), there is a provision that President, on recommendation of the Parliament, has the power to amend or cease the implementation of article 370, through a public notification.
  • Rather than abrogating or repealing Article 370, govt has essentially read down its provisions.
  • The provisions of Article 370 will cease to exist from the date the President of India issues a notification after the Lok Sabha passes the resolution.

Changes under Article 367:

  • 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 proviso to Article 370 (3) has been amended to read “Legislative Assembly of the State”.


Bill: The Jammu and Kashmir Reorganisation Bill

  • The Jammu and Kashmir Reorganization Bill, 2019, will bring about the following changes:
  • Two Union Territories to be formed out of the State of Jammu and Kashmir:
    • UT of Ladakh (Kargil and Leh district)
    • UT of Jammu and Kashmir (all other districts of the state of J&K).
  • Both UTs to have Lieutenant Governor, for now Governor will act as both.
  • While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.
    • Four sitting Rajya Sabha members of the state will become MPs of UT of J&K.
    • Five Lok Sabha seats to go to the UT of J&K.
    • Legislative Assembly of UT of J&K will have 107 seats to be chosen through a direct election.
    • One Lok Sabha seat to go to the UT of Ladakh.
    • 24 seats in PoK will be vacant.

Note: This is the first time after the 1956 states’ reorganisation that a full-fledged state has been relegated to a UT (or two).


Changes after the development:

  • All the provisions that formed the basis of a separate “Constitution” for Jammu and Kashmir stand abrogated.
  • All the provisions of the Constitution of India, shall apply to Jammu and Kashmir too.
  • J&K will now have no separate flag or Constitution.
  • Tenure of assembly will be for 5 years, not 6.
  • Indian Penal Code will replace Ranbir Penal Code (that is currently applicable there).
  • People from other states are now eligible to purchase land and properties.
  • Non-permanent residents can permanently settle in state.
  • Outsiders can now be employed in state govt and companies and be eligible for scholarships in state-run educational institutions.
  • RTI Act will be applicable in J&K.


The decision on J&K expected to be challenged in SC

  • The Indian government passed a resolution seeking to undo J&K’s special status with a simple majority, even as it was widely believed that Article 370 could be “scrapped” only by a Constitution amendment bill needing a two-thirds majority.
  • It did so by using a provision in Article 370 itself even as it fully anticipates that the presidential notification will be challenged in the Supreme Court.
Section : Polity & Governance