Context: On 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019. It revokes the special status given to Jammu & Kashmir under Article 370 and Article 35A and the state has been bifurcated into the Union Territories of Ladakh and Jammu and Kashmir.
Prelims: Constitutional provisions related to the special status of J&K
Mains: GS II- Challenges and impact of abrogation of Article 370 in Jammu & Kashmir
|What is Article 370?|
- Article 370 was included in the Indian Constitution on October 17 1949, as a ‘temporary provision’ which exempts Jammu and Kashmir from the Indian Constitution.
- It allows it to draft its own Constitution and restrict the Indian Parliament’s legislative powers in the state. In short, it accorded special status to the state, giving the J&K legislature free rein to draft its own laws, except in the areas of communications, defence, finance, and foreign affairs. As a result, Jammu and Kashmir had its own constitution, flag, and penal code.
- The applicability of the provisions of the Constitution regarding this State was 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.
- This substance of Article 370, which granted it special status, has been abrogated, although the article still exists in the Constitution.
|J&K before abrogation of Article 370||J&K after the abrogation of Article 370|
|Special Status||No special status|
|Dual citizenship||Single citizenship|
|Separate flag||No separate flag|
|RTI not applicable||RTI applicable|
|Right to education is not applicable in J&K||Right to education is now applicable in J&K|
Citizens from other parts of the country cannot buy property in J&K
Citizens from other parts of the country can buy property in J&K
|What is Article 35A?|
- Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.
- The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
- Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the recommendation of the Nehru's Cabinet.
- The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and therefore the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
- The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
- So, Article 35A was added to the Constitution as a sworn statement of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
|Abrogation of Article 370|
- President issued the president’s rule after the tenure of governor’s rule ended.
- Using the power under Article 356 (1) (b), the President declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.
- With this, the Parliament of India was given the powers of the Legislative Assembly of the State of Jammu and Kashmir.
- 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 “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 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, the concurrence of the governor is considered as “Jammu and Kashmir government”.
|Legislative powers of the Union Territory of Jammu and Kashmir|
- The legislature may make laws for the entire or any a part of the Union Territory of Jammu and Kashmir with reference to any of the matters enumerated within the state list except on subjects “public order” and “police” which can remain within the domain of the Centre vis-a-vis the LG.
- In case of inconsistencies between laws made by Parliament and laws made by the legislature, earlier law shall prevail and law made by the legislature shall be void.
- The role of the Chief Minister is going to be to speak to the L-G all decisions of the Council of Ministers concerning the administration of affairs of the Union Territory and proposals for legislation and to furnish such information concerning the administration of affairs because the L-G may involve.
|Role and powers of the Lieutenant Governor|
- The Bill specifies that the Union Territory of Jammu and Kashmir and therefore the Union Territory of Ladakh will have a standard elected official.
- L-G appointment in Ladakh: The President shall appoint the L-G under article 239. The L-G is going to be assisted by advisors appointed by the Centre since the Union Territory won't have a legislature.
- In the case of Union Territory of Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall outside the purview of powers conferred on the Legislative Assembly, during which he's required to exercise any judicial functions, and/or matters associated with All India services and therefore the Anti-Corruption Bureau
- The Chief Minister shall be appointed by the L-G who also will appoint other ministers with the help of the CM. The L-G shall also administer the oath of office and of secrecy to ministers and therefore the CM.
- The L-G will have the facility to promulgate ordinances which shall have an equivalent force and effect as an act of the legislature assented by the L-G.
- The tabling of the proposed Reorganisation Bill is additional proof that the long reign of the 1954 Order has ended.
- The 1954 Order had introduced a proviso to Article 3, namely that “no Bill providing for increasing or diminishing the world of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State“.
- That power of the State Legislature to offer prior consent doesn't exist anymore.
- With the removal of the 1954 Order, the facility of the State Legislature ceases to exist and Parliamentary laws, including that of reservation, would apply to Jammu and Kashmir as it does in other parts of the country.
- The government called this the end of “positive discrimination” and the closing of the “chasm” between residents of J&K and citizens of other parts of the country.
- The removal of the 1954 Order further also negates a clause which was added to Article 352.
- The Order had mandated that no proclamation of Emergency on grounds “only of internal disturbance or imminent danger shall have an effect” within the State unless with the concurrence of the State government.
|Possible reasons behind the move|
- Article 370 has prevented J&K to merge with India rather than being a basis of its merger.
- Article 370 was seen as discriminatory on the idea of gender, class, caste and place of origin.
- Economic development:
- Post the repeal of Article 370, doors to private investment in J&K would be opened, which would, in turn, increase the potential for development there.
- Increased investments would lead to increased job creation and further betterment of socio-economic infrastructure in the state.
- Opening of shopping for lands would usher in investments from private individuals and multinational companies and provides a lift to the local economy.
- The reduction of the state to a union territory will provide a fillip to the concept of the constitution being more unitary.
- The mechanism that the govt wont to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also within the portents it holds for federalism, democracy and variety.
- The passing of legislation as far-reaching as dismembering a State without prior consultations has set a replacement low.
- The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess.
- A purported process to vary the constitutional status of a sensitive border State has been achieved with none legislative input or representative contribution from its people.
- The descendants of Partition refugees who migrated from Sialkot, many of whom belong to Scheduled Castes, will now be able to get employment, buy and own land and vote in the new Union Territory.
- The present decision has removed another impediment children born to women marrying citizens from outside Jammu and Kashmir can now inherit property.
- Political reservation, as enshrined within the Indian Constitution, has been denied to Scheduled Tribes in Jammu and Kashmir albeit all political parties have suitably accommodated them in other ways.
- Around 11.91% of the State’s population is formed of Scheduled Tribes, the majority of them from Gujjar and Bakarwal tribes. Extending political reservation to them will make the State’s political structure more inclusive.
|Changes introduced since the abrogation of Article 370|
- Land Ownership:
- People, as well as investors outside Jammu and Kashmir, can now purchase land in the Union Territory (UT) as the Centre has notified new land laws for the region.
- Under the newly introduced J&K Development Act, the term “permanent resident of the State” as a criterion has been “omitted”, paving the way for investors outside J&K to invest in the UT.
- Under the ‘transfer of land for the purpose of promotion of healthcare or education’, the government may now allow the transfer of land.
- According to amendments made to “The Jammu & Kashmir Land Revenue Act, Samvat, 1996”, only agriculturists of J&K can purchase agricultural land.
- No sale, gift, exchange, or mortgage of the land shall be valid in favour of a person who is not an agriculturist.
- No land used for agriculture purposes shall be used for any non-agricultural purposes except with the permission of the district collector.
- Under a new provision, an Army officer not below the rank of Corps Commander can declare an area as “Strategic Area” within a local area, only for direct operational and training requirements.
- Domicile certificate issued:
- Over 4 lakh people in Jammu and Kashmir have been issued domicile certificates official document to prove that a person is a resident of a particular state/Union Territory.
- A significant proportion has been given out to those who despite living or serving in the state for years were not considered the residents of the state due to the provisions of Artice 35A, which now stands repealed.
- Job vacancies:
- Over 10,000 vacancies at all the levels have been identified for recruitment in various departments in the first phase.
- Notably, the administrative council has approved a simple and efficient procedure for filling up of class IV vacancies.
- The Union Territory administration has decided to provide reservation to Pahari-speaking people (4%) and economically weaker sections (10%).
- So far, the reservation was available only to people living in villages on the Line of Control, but it has been extended to those living on the international border, benefiting nearly 70,000 families.
- 7th pay commission salary:
- More than three lakh Jammu and Kashmir government employees are now getting benefits under the 7th Central Pay Commission.
- Big projects:
- The world’s highest railway bridge over river Chenab in Jammu and Kashmir will be ready by next year and is expected to connect the Valley with the rest of India by train for the first time by 2022.
- The bridge, which has a central span of 467 metres, is being built at a height of 359 metres from the bed level.
- Work on Shahpur-Kandi, an electricity and irrigation project hanging for five decades, has started.
- The Ujh project has been fast-tracked.
- The metro rail is on its way to Srinagar and Jammu.
- Welfare schemes:
- The government introduced an array of insurances schemes including the Atal Pension Yojana has also been introduced in the newly carved Union Territory.
- The Centre launched 85 people-oriented development schemes, like PM-KISAN, PM-KISAN-Pension, Pradhan Mantri Jan Dhan Yojana and Stand-Up India in Jammu and Kashmir.
- The central government has approved a nearly Rs 6,000 crore multi-purpose project to provide uninterrupted water for irrigation to farmers in Jammu and Kashmir's Kathua district and to produce power.
- The government granted a package of Rs 80,000 crore for development works in Jammu and Kashmir Union Territory.
- It will include the revival of the schemes pending for decades.
- The package would help establish the educational institutions like IIT, IIM and AIIMS.
- New release of funds will also help in the development of road transport, energy and irrigation schemes.
Restrictions on land ownership in various states
Laws and rules restricting land purchase vary from state to state in India. Schedules Five and Six of the Constitution contain provisions to administer and control Scheduled Areas. Also, in certain states, only an agriculturist can purchase farmland.
- A rise in Terrorism:
- Terrorism has risen and can increase within the coming days.
- This is often because historically, any spike in disaffection in Jammu and Kashmir has facilitated a misadventure by Pakistan as an example, the utmost dilution of Article 370 happened within the 1960s, including changes concerning the nomenclature of the ‘head of the State’.
- And this was followed by the infamous ‘Operation Gibraltar’ by Pakistani President Ayub Khan in August 1965.
- The success of Counterterrorism depends largely on ground intelligence and not merely on the changes within the administrative found out.
- Change in status quo:
- India has bifurcated the State and created a Union Territory of Ladakh almost like what Pakistan did with Gilgit and Baltistan regions by a separate province in 2009.
- After stripping Jammu and Kashmir of its special status, India cannot claim the moral status any longer by remarking unlike Pakistan, it kept the integrity of the State intact.
- Safeguarding the interest of ethnic community:
- The Centre must assure the Shia community of Kargil that their interests would be safeguarded within the new Buddhist dominated Union Territory.
- India wouldn't want to make another zone of disaffection during a strategically important border region of the State where it's already faced Pakistani aggression once.
- Another concern is said to the Polarisation of the State further. within the absence of any institutional mechanism to deal with regional and ethnic aspirations, polarization has continued to extend among different regions, often taking a communal turn. This decision might polarise the State even further along regional and non-secular lines.
- The claim of widespread poverty within the State cited together of the justifications for the decision, isn't backed by facts.
- Only 10.35% of the State’s population lives below the poverty level, compared to the national average of 21.92%.
- Bifurcation of Jammu and Kashmir may trigger demands for further division of the State which, unless they're categorically rejected, could trigger an extended period of instability and turbulence.
- Finally, the return of Kashmiri Pandits is unlikely because the security environment within the Valley is currently not conducive for them to travel back.
- High-speed internet services in J&K were suspended in August 2019, when the Centre announced the revocation of J&K’s special status pose a threat to Right to the Internet and hinder the smooth functioning of IT-based business and online education, especially during COVID-19 pandemic.
- The special status of Jammu and Kashmir was meant to end, but only with the concurrence of its people.
- The significant move, in theory, opens up potential opportunities for the development led to economic growth in the Union Territories of Jammu and Kashmir and Ladakh.
- Thus the move is bound to have a significant impact on demography, culture, and politics of Jammu and Kashmir.
- It is to be seen how positive or negative these impacts will be.
Forest Rights Act implementation in Jammu and Kashmir
The Jammu and Kashmir government will implement the Forest Rights Act, 2006, which was not enforced in the Union Territory for the past 14 years