Polity and Governance

Special Status of J&K Withdrawn

J&K declared Union Territories 
•On 5 August 2019, the Home Minister Amit Shah introduced a bill in the Rajya Sabha to convert Jammu and Kashmir's status of a state to two separate union territories, namely Jammu and Kashmir, and Ladakh.
•The union territory of Jammu and Kashmir is proposed to have a legislature under the bill whereas the union territory of Ladakh is proposed to not have one.
•By the end of the day, the bill was passed by Rajya Sabha with 125 votes in its favour and 61 against.
•The next day, the bill was passed by Lok Sabha with 370 votes in its favour and 70 against it.
 
Preparation
•Government has made exhaustive preparation before Constitutional Amendment
•In the lead-up to the move,10,000 paramilitary troops were deployed to Kashmir.
•Then, a warning was issued to annual Hindu pilgrims and tourists citing a terror threat and imminent attacks by militants.
•By imposing the curfew, the internet and phone services were blocked.
•Former Jammu and Kashmir chief ministers Omar Abdullah and Mehbooba Mufti were arrested.
 
Historical background
•In October 1947, the then Maharaja of Kashmir, Hari Singh, signed an Instrument of Accession that specified three subjects on which Jammu & Kashmir would transfer its power to the government of India:
     1. Foreign affairs
     2. Defence
     3. Communications
•In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as prime minister.
•In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370.
•The provisions of 370 was drafted by Sheikh Abdullah.
 
Article 370
Article 370 embodied six special provisions for Jammu and Kashmir.
1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
5. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
6. The Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.
 
Article 35A
•Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
•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.
•Article 35A gives Jammu and Kashmir Legislature power 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.
 
Controversies of 35A
•Article 35A is discriminatory against women.
•If a Woman native to Kashmir, marries a man not holding a permanent resident certificate, "her children are denied a permanent resident certificate", which makes them ineligible to hold immovable property in the state.
•At first, it disqualified women who married non-permanent residents, from their rights as state subjects. However, in 2002, the J&K high court ruled that woman who married non-residents will not lose their rights. However, their children still cannot get the PRC.
•For example- Sunanda Pushkar was from Jammu and Kashmir and married to the resident of another state Shashi Tharoor. However, she could not give the rights on her ancestral property to her son because of Article 35A.
 
Presidential Order
•President of India had issued a presidential order under Article 370, superseding the 1954 order.
•The order stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir.
•Whereas the 1954 order specified that only some articles of the Indian constitution to apply to the state, the new order removed all such special provisions.
•This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated.
 
Issue of the Concurrence of J&K Government
•The President issued the order with the "concurrence of the Government of State of Jammu and Kashmir", which presumably meant the Governor, as no Council of Ministers was operative at the time of the Presidential order.
 
Interpretations to Article 367
•The Presidential order also added few clauses to Article 367 under "interpretations".
•The phrase "Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers" will be understood simply as the "Governor of the state".
•The phrase "State government" shall mean the Governor, while the term "Constituent Assembly" in the old documents would read the "Legislative Assembly of the State".
 
New Article 370
•Home Minister Amit Shah also moved a resolution recommending that the president issue an order rendering all clauses of Article 370 inoperative.
•On 6 August 2019, the president issued Constitutional Order 273 and replaced the extant text of Article 370 with:
     •Article 370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.
 
 

 




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