Background
- The Indian Independence Act, 1947, divided British India, i.e., the territories under the direct administration of the British, into India and Pakistan.
- The 580-odd princely states that had signed subsidiary alliances with the British had their sovereignty restored to them, and were given the options of remaining independent, joining the Dominion of India, or joining the Dominion of Pakistan.
- Section 6(a) of the Act said joining either India or Pakistan would have to be through an Instrument of Accession. States could specify the terms on which they were joining one of the new dominions.
Instrument of Accession
- Instrument of Accession was like a treaty between two sovereign countries that had decided to work together. The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.
- The Maharaja, the Hindu king of a Muslim-majority state, had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after Afridi tribesmen and Pakistan Army regulars invaded the state, and India agreed to help only after he acceded. The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu and Kashmir on only defence, external affairs and communications.
- In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. In Clause 7, he said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
- Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties.
Article 370
- The original draft of Article 370 was drawn up by the Government of Jammu and Kashmir.
- A modified version of the draft was passed in the Constituent Assembly of India on May 27, 1949.
- Article 370 was eventually drafted by Gopalaswami Ayyangar. Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir
- On October 17, 1949, Article 370 was included in India’s Constitution by the Constituent Assembly.
- Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir.
- Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370.
- All the provisions of the Constitution which are applicable to other states are not applicable to J&K.
- Article 370 alongwith Article 35 A let the J&K legislature decide the “permanent residents” of the State, prohibits a non-J&K resident from buying property in the State and ensures job reservation for its residents.
- Some critics of Article 370 have argued earlier that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status.
- However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.
Provisions of Article 370
- According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws.
- Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
- As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
- Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state.
- It can declare emergency in the state only in case of war or external aggression. The Union government can therefore cannot declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
- Article 370, in its sub-clause (3), has itself laid down that Article 370 can cease to operate by way of a presidential order but a recommendation of the ‘Constituent Assembly’ shall have to be placed before him.
Constitution (Application to Jammu and Kashmir) Order, 1954 / Article 35A
- 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 35 is followed by Article 36 — but appears in Appendix I.
- Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
How it was incorporated in the Constitution
- 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 Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
- 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.
- So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
About Current Presidential Order – Constitution (Application to Jammu and Kashmir) Order 2019
- 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.
- 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
- Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights.
- Therefore, the discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A.
- This provision is currently under challenge in the Supreme Court on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370.
- However, Monday’s Presidential Order, too has amended Article 367 without following the amending process.
2 . Jammu and Kashmir Reorganisation Bill, 2019
Context : The Jammu and Kashmir Reorganisation Bill, 2019 was introduced in Rajya Sabha on August 5, 2019. The Bill provides for reorganisation of the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
About Jammu and Kashmir Reorganisation Bill, 2019
- Reorganisation of Jammu and Kashmir: The Bill reorganises the state of Jammu and Kashmir into:
- the Union Territory of Jammu and Kashmir with a legislature
- the Union Territory of Ladakh without a legislature.
- The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir.
- Lieutenant Governor: The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed by him known as the Lieutenant Governor. The Union Territory of Ladakh will be administered by the President, through a Lieutenant Governor appointed by him.
- Legislative Assembly of Jammu and Kashmir: The Bill provides for a Legislative Assembly for the Union Territory of Jammu and Kashmir. The total number of seats in the Assembly will be 107. Of these, 24 seats will remain vacant on account of certain areas of Jammu and Kashmir being under the occupation of Pakistan. Further, seats will be reserved in the Assembly for Scheduled Castes and Scheduled Tribes in proportion to their population in the Union Territory of Jammu and Kashmir. In addition, the Lieutenant Governor may nominate two members to the Legislative Assembly to give representation to women, if they are not adequately represented.
- The Assembly will have a term of five years, and the Lieutenant Governor must summon the Assembly at least once in six months. The Legislative Assembly may make laws for any part of the Union Territory of Jammu and Kashmir related to: (i) any matters specified in the State List of the Constitution, except “Police” and “Public Order”, and (ii) any matter in the Concurrent List applicable to Union Territories. Further, Parliament will have the power to make laws in relation to any matter for the Union Territory of Jammu and Kashmir.
- Council of Ministers: The Union Territory of Jammu and Kashmir will have a Council of Ministers of not more than ten percent of the total number of members in the Assembly. The Council will aide and advise the Lieutenant Governor on matters that the Assembly has powers to make laws. The Chief Minister will communicate all decisions of the Council to the Lieutenant Governor.
- High Court: The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Ladakh, and Jammu and Kashmir. Further, the Union Territory of Jammu and Kashmir will have an Advocate General to provide legal advice to the government of the Union Territory.
- Legislative Council: The Legislative Council of the state of Jammu and Kashmir will be abolished. Upon dissolution, all Bills pending in the Council will lapse.
- Advisory Committees: The central government will appoint Advisory Committees, for various purposes, including:
- Distribution of assets and liabilities of corporations of the state of Jammu and Kashmir between the two Union Territories
- Issues related to the generation and supply of electricity and water
- Issues related to the Jammu and Kashmir State Financial Corporation.
- These Committees must submit their reports within six months to the Lieutenant Governor of Jammu and Kashmir, who must act on these recommendations within 30 days.
- Extent of laws: The Schedule lists 106 central laws that will be made applicable to Union Territories of Jammu and Kashmir and Ladakh on a date notified by the central government. These include the Aadhaar Act, 2016, the Indian Penal Code, 1860, and the Right to Education Act, 2009. Further, it repeals 153 state laws of Jammu and Kashmir. In addition, 166 state laws will remain in force, and seven laws will be applicable with amendments. These amendments include lifting of prohibitions on lease of land to persons who are not permanent residents of Jammu and Kashmir.
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