WITHDRAWAL OF SPECIAL STATUS TO JAMMU & KASHMIR

[DR.MARIAPPAN GOVINDARAJAN]

After independence efforts were taken to merge most of the States within India.  Our leaders had taken greatest efforts in unification of India.  Maharaja Hari Singh wanted to join with India subject to certain privileges offered to them.  He executed the instrument of Accession under the India Independence Act acceding to the domain of India.  According to the instrument India can exercise is powers on Jammu & Kashmir only in relation to Defence, External Affairs and communications.

Article 370 was inserted in the Constitution of India making Jammu & Kashmir as part of India as one of the States under Article 1 of the Constitution.   In Schedule I to the Constitution of India ‘Jammu & Kashmir’ is described as the territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir.  The provisions of Article 1 and Article 370 of the Constitution of India only are applicable to Jammu & Kashmir.  If the Central Government wants to enact any law that is also applicable to Jammu & Kashmir the concurrence of the State Government and its further rectification by the Jammu & Kashmir constituent Assembly was compulsory. 

In 24.07.1952 Delhi Agreement was signed to constitute a framework for distribution of legislative power between State and Central legislature and extending the constitutional jurisdiction in the State.  The Agreement gave special powers to the Jammu & Kashmir State Legislate to make laws for conferring special rights and it extended to Articles 52 and 62 of the Constitution to the State. 

On 14.05.1954 the President of India issued ‘The Constitution (Application to Jammu & Kashmir) Order, 1954 under Article 370’.  This order extended numerous Articles of the Constitution as well as the jurisdiction of the Supreme Court, Election Commissioner, Comptroller & Auditor General and Union Public Service Commission to Jammu & Kashmir.    This order also inserted Article 35A to the Constitution.  Article 35A empowered to the State Legislature to define permanent residents of Jammu & Kashmir and provide special rights and privileges to them.

The provisions of Article 370 are temporary provisions with respect to State of Jammu & Kashmir.  Article 370(1) provides that notwithstanding anything in the Constitution-

• the provisions of article 238 [re-organization of Indian States; this Article was omitted by Constitution (Seventh) Amendment Act, 1956] shall not apply in relation to the State of Jammu and Kashmir;
• the power of Parliament to make laws for the said State shall be limited to-

• those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
• such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

• the provisions of article 1 and of this article shall apply in relation to that State;
•  such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify;

• the first proviso provides that no such order which relates to the matters specified in the Instrument of Accession of the State shall be issued except in consultation with the Government of the State; no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
• the second proviso provides that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

Article 370 (2) provides that if the concurrence of the Government of the State  be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

Article 370(3) provides that notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify. The proviso provides that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

On 05.08.2019, the President of India made ‘The Constitution (Application to Jammu & Kashmir) Order, 2019’, in exercise of the powers conferred by Article 370(1) of the Constitution, with the concurrence of the State of Jammu & Kashmir, which came into force with effect from 05.08.2019.

The order inserted clause (4) to Article 370 which reads as below-

• For the purposes of the Constitution as it applies in relation to the State of Jammu & Kashmir-

• Reference to the Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
• References to the person for the time being recognized by the President on the recommendations of the Legislative Assembly of the State as the Sardar-i-Riyasat of Jammu & Kashmir, acting on the advice of the Council of the Ministers of the State for the time being in office, shall be construed as references to the Governor General or Jammu & Kashmir;
• References to the Government of the said State shall be construed as including the references to the Governor General of Jammu & Kashmir acting on the advice of his Council of Ministers; and
• In proviso to clause (3) of Article 370 of the Constitution, the expression ‘Constituent of Assembly of the State referred to in clause (2)’ shall read as ‘Legislative Assembly of the State’.

On 06.08.2019 the President of India made a declaration, in exercise of the powers conferred by clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, on the recommendation of Parliament, is pleased to declare that, as from the 6th August, 2019, all clauses of the said article 370 shall cease to be operative except the following which shall read as under, namely :-

"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, judgment, 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."

The Central Government also introduced ‘The Jammu & Kashmir Reorganization Bill, 2019’ which provides for the bifurcation of Jammu & Kashmir into two Union Territories one ‘Ladak Union Territory’ without State Assembly containing Ladak and Karghil and another ‘Jammu & Kashmir Union Territory’ having State Assembly.  It will be passed in both the Houses and will get the assent of the President of India and soon will be notified in the Official Gazette. 

The temporary provisions of Article 370 of the Constitution came into an end.