President of India Scraps Article 370: Special Status to Jammu & Kashmir Taken Away

The President of India, Ram Nath Kovind, in concurrence with the government of Jammu & Kashmir, today, promulgated the Constitution (Application to Jammu & Kashmir) Order, 2019. The effect of this ordinance is that the special status granted to the state of Jammu & Kashmir under Article 370 of the Constitution of India has now been taken away. This means that all the provisions of the constitution, as amended from time to time, will now automatically apply to the state of Jammu & Kashmir as well.

As per Article 370, the state of Jammu & Kashmir had been granted a special status by virtue of which union parliament could only make laws on matters of Defense, Communication and foreign relations applicable to Jammu & Kashmir. These were the only three areas on which the legislative power had been granted to the parliament of India in the Instrument of Accession signed by Hari Singh. Laws passed by the parliament pertaining to any other matter would only apply if the state legislative assembly concurred with it, and ratified it separately.

After today’s presidential order, this special status of Jammu & Kashmir has been taken away and central government’s legislative power is now extended to the whole of Jammu & Kashmir. Further, all the provisions of the constitution now applies to the state of Jammu & Kashmir, including Article 2 & 3 of the Constitution which grants the parliament the power to alter the boundary of a state and separate an existing state

The Marginal note to Article 370 read as “Temporary Provision with respect to the state of Jammu & Kashmir”. In the past, this provision has been used to pass over 45 presidential orders that granted certain legislative power to the central government over the state. The present order is also of similar nature that “supersedes” all the previous orders and makes all provision of the constitution equally applicable to the state of Jammu & Kashmir. Here, it must be noted that this is not a constitutional amendment, but a presidential order passed on the advice of the council of ministers.

Further, Article 35A which empowered the state government to make special provisions for the permanent residents of the state has also been abrogated. In addition to special benefits to the permanent residents, the article also restrained non-residents from permanently settling or buying property in the state. This provision for special treatment to the permanent residents of the state has now been taken away.

Apart from these, Article 367 of the Constitution has also been amended and a new clause namely Article 367(4) has been added. The effect of this addition is that, under Article 367, reference to the “Government of the state” shall be read as a reference to the “Governor of the state acting on the advice of his council of Ministers”. Further, under Article 370(3) the phrase “Constituent Assembly of the state” shall be read as “legislative assembly of the state”. As a consequence, orders passed in concurrence with the governor would imply concurrence of the state government.

Union Home Minister Amit Shah also said in the Rajya Sabha that the government has decided to bifurcate the state into two union territories namely Jammu & Kashmir and Ladakh. Out of these, only Jammu & Kashmir will have a legislature and Ladakh will remain without a legislature.

While several leaders including the leader of opposition Ghulam Nabi Azad has severely criticized the move, it remains to be seen how the order will impact the residents of the state and bring stability within the state.

By-

Nikhil Singh

Student Reporter, INBA.