[Analytics] How Kashmir changed on August 5

It’s important to begin by making one thing very clear – Article 370 of the Indian Constitution has not been revoked. Rather, the President of India has made modifications to it, which is allowed by certain provisions in the article itself. Kaushik Deka specially for the India Today.

On August 5, Union Home Minister Amit Shah announced in the Rajya Sabha that the Government had scrapped the special status granted to the state of Jammu and Kashmir (J&K) by modifying Article 370 of the Constitution. (The same day, the Rajya Sabha also passed the Jammu and Kashmir Reorganisation Bill, which proposes the bifurcation of the state into two union territories-Ladakh and Jammu-Kashmir.)

What did Article 370 mean for Jammu and Kashmir?

Included in the Indian Constitution on October 17, 1949, Article 370 is a ‘temporary provision’, which exempts Jammu and Kashmir from the Indian Constitution, permitting it to draft its own Constitution and restricting 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.

Can Article 370 be repealed?

The Constituent Assembly of Jammu and Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state, or to recommend the abolition of Article 370 altogether. However, the J&K Constituent Assembly was dissolved after it drafted the state’s constitution, and during its existence, did not comment on the abrogation of Article 370. However, Clause 3 of the article gives the President of India the power to amend its provisions and scope. The Narendra Modi-led government has sought to take advantage of this clause, and has brought in a Presidential Order that extends all provisions of the Indian Constitution to Jammu and Kashmir.

But there may still be a legal hurdle. Though Clause 3 allows the President of India to declare that Article 370 has ceased to be operative or that it remains operative with exceptions, such a decision must be recommended by the Constituent Assembly of the state. Since J&K’s Constituent Assembly was dissolved on January 26, 1957, one legal opinion is that Article 370 can never be repealed. The presidential order, issued on August 5, says that “the expression “Constituent Assembly of the State referred to in Clause (2)” shall read “Legislative Assembly of the State”. As the Assembly is in suspension, the president recognises the concurrence of the Governor as the concurrence of the legislative assembly of Jammu and Kashmir.

The Union government, in a written reply on the topic to Parliament in 2018, had said there was no proposal to remove Article 370. In 2017, Delhi High Court rejected a petition demanding the repeal of Article 370. In April 2018, the Supreme Court had ruled that despite the head-note of Article 370 using the word ‘temporary’, that it was not temporary. The Supreme Court had also set an earlier precedent on the matter in a case in 1969, making the same determination. At the time, it had said: “Article 370 has never ceased to be operative.”

Constitutional experts are divided over the legal validity of the Presidential Order limiting the scope of Article 370. “It is utterly and palpably unconstitutional,” said constitutional expert A.G. Noorani. “After the dissolution of the [J&K] Constituent Assembly in 1957, the power [to abrogate] Article 370 vanished.” Congress spokesperson and Rajya Sabha MP Abhishek Manu Singhvi has called the resolution legally flawed and indefensible. However, Supreme Court advocate Rakesh Dwivedi believes that any plea against the government’s decision will not be successful. A former secretary general of the Lok Sabha, Subhash Kashyap, agrees with Dwivedi, saying, “As [J&K] is under the Centre’s rule, Parliament can be interpreted as the legislature of Jammu and Kashmir. So, no concurrence is required from the state government to make changes.”

What is Article 35 (A)?

Article 35(A) stems from Article 370, and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.

This article empowered the state legislature to define who the state’s ‘permanent residents’ were, along with their special rights and privileges. For instance, no one, except those defined as ‘permanent residents of J&K’ are entitled to property rights in the state, employment in state government, or to scholarships and other social benefits provided by the state. Initially, under this provision, if a Kashmiri woman were to marry a citizen from another Indian state, she would lose her Kashmiri citizenship and property rights. However, this provision was struck down by the Jammu and Kashmir High Court in October 2002, with the court ruling that the daughter of a permanent resident of J&K would not lose her permanent resident status as a result of such a marriage. However, the children of such a union would not get succession rights. Though the constitutional validity of Article 35 (A) has been challenged in the Supreme Court, the apex court has rejected three appeals.

So what happens now?

Though the Presidential Order may face legal scrutiny, as matters currently stand, Jammu and Kashmir will witness historic political and geographic changes. It is to be divided into two union territories-Ladakh and Jammu and Kashmir. Ladakh will not have a legislature, while Jammu and Kashmir will have a legislative assembly with 107 members-however, this assembly will not have the authority to pass laws relating to ‘public order and the police’. The single largest party in the assembly will form the government, headed by a chief minister, and the assembly will have a five-year term, not six, as was the earlier case. A Lieutenant Governor will govern both Union territories. Of the six Lok Sabha seats currently with the state of Jammu and Kashmir, five will remain with the union territory of Jammu and Kashmir, while one will go to Ladakh.

However, the biggest fallout for the state will stem from the abolition of its special status under Article 370.

These are the likely major changes:

Jammu and Kashmir will no longer have separate constitution, flag or anthem. The citizens of Jammu and Kashmir will not have dual citizenship-they will be citizens of India alone.
As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in that document-until now, this was not the case. Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.
The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
As the government has modified the Article 370, diluting special status to Jammu and Kashmir, Article 35 (A), which originates from the provisions of Article 370 stands null and void. Any Indian citizen from any part of the country can now buy property in Jammu and Kashmir, take a state government job and enjoy scholarships and other government benefits. Children of a woman marrying outside Jammu and Kashmir will not lose property rights.