Historical Background
India attained independence on August 15, 1947. At that time, over 550 princely states, along with almost all of the states within the present-day territory of India, acceded to India, except for some states, including the province of Jammu and Kashmir. The Hindu ruler of the province, Maharaja Hari Singh, decided to remain independent, and therefore, the merger of the province with India was delayed.
On October 26, 1947, due to acts of aggression by Pakistani tribes, the Instrument of Accession (which was introduced in the Government of India Act, 1935, wherein a ruler of a princely state could accede his kingdom into the ‘Federation of India’) of the state of Jammu & Kashmir to the Dominion of India was signed by Maharaja Hari Singh. Sheikh Mohammed Abdullah was appointed by Maharaja Hari Singh as the Prime Minister of the interim government of the state on March 5, 1948, and later, peace was established in the state due to the intervention of the United Nations, which mediated a ceasefire agreement that went into effect on December 31, 1948.
Article 370 – Introduction
The accession of the state of Jammu & Kashmir came with some special provisions granted to the state by the Constitution of India, which were described under Article 370 (originally numbered Article 306A in the original draft of the Constitution of India). Jammu & Kashmir was administered by India as a state from 1952 to October 31, 2019, and was conferred the special provisions of having a separate constitution, a state flag, and autonomy of internal administration under Article 370. Other salient features of the article included its separate Criminal code, i.e., the Ranbir Penal Code, a term period of 6 years of the legislative council instead of 5 years like that of other states, and the power of determining residents of the state and ownership of property. Additionally, there was no right for the Central Government to declare a financial emergency in the state.
Part XXI of the Indian Constitution, which contains Article 370, was titled “Temporary, Transitional, and Special Provisions,” and the state’s constituent assembly was given the power to amend or abrogate Article 370 altogether, in which case the whole Indian Constitution would apply to the state.
Article 370 exempted the state from the complete applicability of the Indian Constitution and cannot be compelled to follow it. It had the power to create its constitution, limited the legislative powers of the Central Government to only 3 subjects (at the time of framing), namely defence, foreign affairs, and communications, and provided that the other constitutional powers of the Central Government could only be extended to the state with the ‘Concurrence’ of the State Government.
Various Presidential Orders
In July 1952, following an agreement between the former Prime Minister of India, Jawaharlal Nehru, and Sheikh Abdullah, who was the Prime Minister of Jammu and Kashmir at that time, a demand was made for the state to regulate the rights and privileges of its permanent residents and for Indian citizenship to be made applicable to the “Permanent Residents”. On May 14, 1954, when the Presidential Order of 1954 also known as The Constitution (Application to Jammu and Kashmir) Order, 1954 came into force, Article 35A was added to the Constitution of India. This granted special rights to the state of Jammu & Kashmir, including the rights and privileges of residency. Residents who had legally acquired immovable property before May 14 or had been living in the state for not less than 10 years were considered permanent residents. The state was given the power to restrict settlement and acquisition of immovable property by non-residents of the state, effectively minimizing outside activities in the state. These rights and privileges were later formulated in the Constitution of the State of Jammu & Kashmir in 1956. Further provisions added in the Order included the extension of Fundamental Rights, Jurisdiction of the Supreme Court in the state, and the power of the Central Government to declare a National Emergency in any event of foreign aggression. The power to take action in case of internal disturbance was to be enforced only with the approval of the State Government. Article 370 prohibits citizens from other states to buy property in Jammu & Kashmir, and the Central Government has no power to declare a financial emergency in the state. However, amendments can be made by the Central Government with the approval of the state government.
From 1955 to 2018, several more Presidential orders were issued, making various provisions of the Constitution valid in the state of Jammu and Kashmir. Since the Constituent Assembly ceased to exist after January 26, 1957, when a resolution was passed by the Representatives of Kashmir in 1956, all these orders were made applicable with the approval of the State Government, and some were passed when the state was under Presidential Rule.
In 1972, Mohd Maqbool Damnoo filed a petition challenging the constitutionality of interpreting and replacing the position of Sadar-i-Riyasat with the Governor of the state. The Supreme Court ruled in his favor and held that the Governor is the successor to that position and will be able to give concurrence of the state to any amendment under Article 370 if there is no Legislative Council in session.
Despite being initially titled “temporary” under Part XXI of the Indian Constitution, Article 370 was declared “special” by the addition of that word to the title of Part XXI in 1962. Since then, it has been declared as not a temporary provision by the Supreme Court in various cases.
Abrogation of Article 370
On August 5, 2019, Article 370 ceased to exist. All clauses related to the article, along with the important provision related to it, Article 35A, were revoked with immediate effect by the President of India after a resolution was passed in the Parliament of India brought up by the Home Minister of India, Mr Amit Shah. The resolution was passed in both Houses of Parliament with a vast majority: 67% (125 out of 186 votes) and 82% (351 out of 423 votes) in favor of the Rajya Sabha and Lok Sabha, respectively. The prevailing Presidential order of 1954 was overridden, and all the provisions granted to the State of Jammu & Kashmir were nullified, including the Special Status given to the state. The order of revocation of Article 370 and all the provisions applied to the state was issued by the President of India with the concurrence of the Governor of Jammu & Kashmir, as there was no Legislative Assembly in session, and the state was under President’s Rule. However, in the process of abrogating Article 370, the concurrence of the Constituent Assembly of the state was required, but it was already dissolved on Jan 25th, 1957, without any recommendation of the dissolving of the article. Due to this fact, in the 2017 case of SBI vs. Santosh Gupta, the Supreme Court held that there is a limitation period of 5 years mentioned for Article 369 (also a temporary provision), but no such limitation period is mentioned for Article 370. Therefore, it will continue until ordered to be revoked by the President of India with the recommendation from the State’s Constituent Assembly (already dissolved). In the 2018 case of Kumari Vijayalakshmi Jha vs. UOI, the Supreme Court stated that Article 370 is permanent in nature and not a temporary provision and thus cannot be abrogated.
Therefore, the Government of India, through its power under Article 370(1), amended Article 367, which is the interpretation clause of the Constitution, and interpreted the reference of “State Government of Jammu and Kashmir” to the “Governor of Jammu and Kashmir,” and the reference of “Constituent Assembly” of the state to the “Current Legislative Assembly,” so that the Central Government could receive concurrence from the Governor, as the Legislative Assembly was in suspension, for abolishing Article 370.
J&K Reorganization Act, 2019
After the abrogation of Article 370, on the same day, August 5, 2019, the Government of India (Home Minister Mr. Amit Shah) introduced the J&K Reorganization Act in the Rajya Sabha. The act contained provisions regarding the reconstitution of the state of Jammu & Kashmir into two different union territories: Jammu and Kashmir, and Ladakh. It was passed in the Rajya Sabha on the same day by the voice vote method, in the Lok Sabha the next day (371 votes in favor and 70 votes against), and received the President’s assent three days later on August 9th, and it came into effect on October 31st, 2019.
The Reorganization Bill stated that the Union Territory of Jammu & Kashmir will have a Legislature, but the Union Territory of Ladakh, which will include Kargil and Leh, will be without a Legislature. Both the UTs will be administered by the President through an administrator which will be known as the Lieutenant Governor of the UTs.
The Legislative Assembly of the Union Territory (UT) of Jammu & Kashmir comprises 107 seats, of which 24 seats will remain vacant due to areas of Pakistan-occupied Kashmir (PoK). The Lieutenant Governor can nominate two members to give representation to women if their number is scarce in the assembly. The reservation for the Scheduled Castes and Scheduled Tribes is to be made in proportion to their population in the UT. The term of the Assembly has been changed to 5 years, like the rest of the States and UTs in the country, instead of the previous 6 years. The UT will have a Council of Ministers comprising not more than 10% of the total number of members in the Assembly. The Legislative Council of the state of Jammu & Kashmir has been abolished.
In terms of representation in the Parliament, the Union Territory of Jammu & Kashmir has 5 seats in Lok Sabha and 4 seats in Rajya Sabha, while the Union Territory of Ladakh has 1 seat in Lok Sabha and no representation in Rajya Sabha.
The Assembly of Jammu & Kashmir has been given the power to make laws for the union territory. However, in case of any inconsistency between the laws made by the Parliament and the laws made by the State’s Assembly, the laws made by the former will prevail, and the laws made by the Assembly will be void.
The High Court of Jammu & Kashmir will act as the common High Court for both the UTs of Ladakh and Jammu and Kashmir.
A total of 153 state laws were repealed after the Revocation of Article 370. Restrictions on the purchase and transfer of property by non-residents of Jammu & Kashmir were also removed. 106 laws of the Central list will now be applicable in Jammu & Kashmir, including the Right to Education Act, Amendments to Hindu Succession Act, Right to Information Act, and many more. The reservation for Scheduled Castes and Scheduled Tribes will be applicable for the first time in Jammu and Kashmir. The residents of Jammu & Kashmir can now have access to various beneficiary schemes of the Central Government, such as the scholarship scheme, which will speed up the progress of the region.
Reactions – National and International
There are mixed views on the abrogation of Article 370 and the enactment of the Jammu & Kashmir Reorganisation Act. India has received heavy criticism worldwide due to this. Many representatives of various countries condemned this action taken by the Indian Government, especially China and Pakistan. In the country, many national political parties supported the move, but various domestic parties of Jammu & Kashmir allied to show their resolve and defend the special status of the state. The Central Government had already mobilized thousands of military troops in the region before passing the resolution of abrogation and introduction of the reorganization act to maintain peace. However, many riots took place in the state, and many regions were placed under lockdown, and Section 144 curfews were imposed. More than 4,000 protestors were reported to have been arrested by August 18th to prevent outbreaks of violence, and many leaders of the state, including former Chief Minister Mehbooba Mufti and Omar Abdullah, were placed under preventive detention (house arrest). There was a total communication blackout, with no internet and telephone connectivity for months in the region to maintain peace.
These restrictions in the regions were later slowly removed when the chance of violent outbreaks was eliminated. Restrictions in the Kashmir valley lasted longer than in the areas of Jammu. High-speed internet connectivity was restored after 18 months in the region.
Conclusion
Article 370 was introduced to grant special status to Jammu & Kashmir, but it was always intended to be a temporary provision in the Constitution. Unfortunately, it also hindered the state’s overall development in various sectors and created a sense that it was not completely part of India. Despite the riots that occurred after its revocation, it was necessary as Jammu & Kashmir has long been in dispute with Pakistan, and it once again proved that the state is an integral part of India. With the revocation, all laws and schemes of the central government that apply to the rest of the country will now be applicable in Jammu & Kashmir, boosting the region’s development. As a result of the revocation, the state was reorganized into two union territories: Jammu & Kashmir and Ladakh.
