The situation in Jammu and Kashmir is a flashpoint for India-Pakistani relations that could easily lead to war. The Hindu nationalists, who have been rising in power and would likely be inclined to exploit such tensions, appear to have made a move on the area as Modi’s government has placed the region on lockdown following the removal of the area’s special privelages:
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.
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). While the 1954 presidential order constituted a founding legal document for Jammu and Kashmir, Article 35A protected the exclusive laws – such as the bar on outsiders buying property and women marrying non-Kashmiris losing their property rights – of the State.
These special measures can be altered only on the recommendation of the Sadar-i-Riyasat of Jammu and Kashmir, 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”.
This was how the Modi government has changed this special status of Kashmir overnight:
1. President Ram Nath Kovind 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. As it can be issued only with the Jammu and Kashmir government’s concurrence, the notification uses the words “with the concurrence of the Government of the State of Jammu and Kashmir”. This presumably means the Governor, who is now administering the State under President’s Rule, has given his concurrence on behalf of the State government.
2. 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.
3. 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 Constitution.
Article 367 contains “Interpretations”. They contain guidance on how to read or interpret some provisions. 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 construed 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 proviso to Article 370 (3) has been amended to read “Legislative Assembly of the State”. This is the proviso 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. Therefore, the State Assembly has to play that role.
The issuance of the Presidential Order has set the stage for the abrogation 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. For instance, when a State is under Central rule, the budget allocations for that State are voted in Parliament in the absence of the Assembly.
The Union Home Minister introduced two statutory resolutions, one, to recommend that the President issue a notification rendering Article 370 inoperative, and two, to accept the Jammu and Kashmir Reorganisation Bill. The passage of the former resolution will enable the President to declare that Article 370 has ceased to operate.
It will be interesting to watch how this develops.