J&K's Article 370 and Article 35(A) Revoked

The state of Jammu and Kashmir has been bifurcated into 2 Union Territories: Jammu & Kashmir with a legislature, and Ladakh without a legislature.
This was done through the Jammu and Kashmir Reorganization Bill, 2019 which was passed by the Rajya Sabha on August 5th, and the Lok Sabha on August 6th.
Article 370 which empowers Jammu and Kashmir with special status has been revoked, and so has Article 35(A) which deals with permanent residency. All other constitutional provisions have now been extended to the newly carved Union Territories of Jammu & Kashmir and Ladakh.
While the state of Jammu and Kashmir has been under President’s Rule since December 2018 because of a collapsed assembly: section 144 of the CrPC has been imposed, placing the valley’s prominent politicians under house arrest, banning public gathers and blacking out internet and mobile usage.

Houses of Parliament

Home Affairs Amit Shah introduced two bills and two resolutions regarding Jammu & Kashmir in Parliament:

1. Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} – issued by President of India to supersede the 1954 order related to Article 370.

2. Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}

3. Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}

4. Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019

The Rajya Sabha on Monday adopted resolutions to scrap Article 370 and Article 35A in Jammu and Kashmir and passed the Jammu and Kashmir Reorganization Bill (2019)  through a voice vote, with 125 in favour, 61 against and 1 abstention. The Congress, Left parties, DMK, MDMK, SP and RJD voted against the Bill, while Trinamool Congress walked out. 

The Upper House also passed the Jammu and Kashmir Reservation (Second Amendment) Bill, which seeks to extend the 10% quota to economically weaker sections in the state which has special constitutional provision. 

On Tuesday, the Lok Sabha gave its green signal to the resolution to scrap Article 370 with 351 members voting in support of it, 72 against and 1 member abstained. They also passed the Jammu and Kashmir Reorganisation Bill, 2019 by a voice vote where, 370 members voted in its favour and 70 voted against it.

What is Article 370?

• 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 Autonomous Status under Article 370.

• This means that the provisions of the Constitution which are applicable to other States are not applicable to J&K. Except in the areas of defence, foreign affairs, finance and communications, the Parliament needs the state government's concurrence for applying all other laws. 

• Other Provisions of Article 370:

  • 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 an emergency in the state only in the case of war or external aggression. The union government can therefore not 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. 

Implications of Removing Article 370

• The removal of this provision in the constitution ends special status for Kashmir, which was key to its accession to India in 1947.

• J&K will have no separate flag or constitution.

• Indian Penal Code (IPC) will replace J&K’s separate Ranbir Penal Code (RPC) to deal with criminal cases.

• Article 365, under which the President’s rule can be imposed in any State, will also become applicable to both the UTs.

• People from other states will be able to purchase land and properties in the new UTs.

• The Right to Information (RTI) Act will become applicable to the new UTs.

• All children in Jammu & Kashmir and Ladakh will benefit from Right to Education.

• Minorities will be eligible for 16% reservation, whereas earlier there was no reservation for minorities such as Hindus and Sikhs.

• Panchayats will have the same rights as in other states. Earlier panchayats did not have any rights.

• Citizens of Jammu & Kashmir will have single citizenship of India, while earlier they had dual citizenship.

The legality of the repeal

• In October 2015, the High Court of Jammu and Kashmir ruled that Article 370 cannot be "abrogated, repealed or even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article. However, the ruling of any court can be superseded by passing a legislature to that effect, as long as the law in question is not a part of the basic structure of the constitution, which Article 370 is not. 

• Though the Indian Constitution clearly classifies Article 370 as a “temporary, transitional and special” provision, the Supreme Court in April 2018 ruled that despite Article 370’s classification as “temporary” it was vital to the constitution of J&K, not temporary, and therefore could not be abrogated. 

  • Earlier, in 1969 the Supreme Court had set precedent on the matter by stating that “Article 370 has never ceased to be operative” and must be held as a permanent provision in the Constitution of India. 

  • However, proponents of abrogation hold that since the Constitution of India calls it temporary and transitional, no grounds could make it permanent. 

What is Article 35A- “Permanent Residents Law”? 

• This provision of the Constitution of India allows the State Assembly of Jammu & Kashmir to define who is and is not a “permanent resident” of the state, and additionally restrict the rights of any person not classified under “permanent resident” of the state. It gives the state legislators the exclusive power to determine as to which people in or outside the state will have special rights and privileges granted by the state such as property rights, eligibility for government jobs, any kind of scholarship, foreign investment, aid or other welfare grants, etc.

• This provision, inserted through a special Presidential Order in 1954, gives the state Assembly powers to determine the recipients of state grants, owners of state land and property, as well as permanent settlers in the region.

• Any changes made to the provision requires the consent of the state assembly. 

Special status vs. Normal status

• The concept of a special category state was first introduced in 1969 when the 5th Finance Commission sought to provide certain disadvantaged states with preferential treatment in the form of central assistance and tax breaks. 

• Initially only 3 states Assam, Nagaland and Jammu & Kashmir were granted special status but since then 8 more have been included, namely- Arunachal Pradesh, Himachal Pradesh, Manipur, Meghalaya, Mizoram, Sikkim, Tripura and Uttarakhand. 

• The rationale for special status is that certain states, because of inherent features, have a low resource base and cannot mobilize resources for development. Some of the features required for special status are: (i) hilly and difficult terrain; (ii) low population density or sizeable share of tribal population; (iii) strategic location along borders with neighbouring countries; (iv) economic and infrastructural backwardness; and (v) non-viable nature of state finances. 

• The decision to grant special category status lies with the National Development Council, composed of the Prime Minister, Union Ministers, Chief Ministers and members of the Planning Commission, who guide and review the work of the Planning Commission. 

• Now that the state of Jammu and Kashmir is no longer a state, since it has been divided into 2 Union Territories, it will lose its special status with the repeal of Article 370.

Union Territory vs. State

Currently, there are 29 states and 7 UT’s in India. However, after this bifurcation, there will be 28 states and 9 UT in the country: 

States:

• The states of India are administrative units having their own government, legislation and elected chief ministers as head of the government. 

• The Governors of States act as the representative of the President. 

• States have a federal relationship with the central government

Union Territories:

• Union Territories are ruled directly by the Central Government. 

• The President is the executive head of the Union Territory.

• A Lieutenant Governor (LG) is appointed by the Central government to represent the President and act as Administrator of the UT’s. J&K and Ladakh will have 2 separate LGs, and the Governor of J&K will become the LG of the new J&K UT.

• UT’s are generally smaller in size (geographically) than States. However, this does not apply to J&K and Ladakh which are considerably bigger than some of the smaller states in India. 

• Union Territories of India: Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Lakshwadeep, Andaman and Nicobar Islands (without legislature); Puducherry, Delhi (with legislature). 

• While all UTs have representation in the Lok Sabha, they are not all represented in the Rajya Sabha. Currently, only two UTs (Delhi and Puducherry) have their own Legislative Assembly, which is represented in the Rajya Sabha. Jammu & Kashmir will be a UT with a legislature (like Puducherry), while Ladakh will be a UT without a legislature (like Chandigarh).  

Why a separate Ladakh: 

• In his statement, Amit Shah said "The Ladakh Division of the State of Jammu and Kashmir has a large area but is sparsely populated with very difficult terrain. There has been a long-pending demand of the people of Ladakh to give it the status of a Union Territory to enable them to realise their aspirations. The Union Territory of Ladakh will be without Legislature."

• The Bill further cited internal security and cross-border terrorism as the chief reason for carving out Ladakh as a separate union territory. 

References: 

https://www.business-standard.com/article/current-affairs/jammu-kashmir-special-status-decoding-article-35a-and-article-370-119080500104_1.html

https://www.businesstoday.in/current/economy-politics/article-35-a-jk-unrest-jammu-and-kashmir-constitution-law/story/370244.html

https://economictimes.indiatimes.com/news/politics-and-nation/article-370-why-is-kashmir-tense-about-it-what-can-india-do/articleshow/70508922.cms?from=mdr

http://devgan.in/criminal_procedure_code/index.php?q=144&a=2

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