The controversial Articles 370 and 35A that provided Jammu and Kashmir with a ‘special status’ were abrogated on 05 August 2019 by a Presidential Order introduced in the Rajya Sabha by Union Home Minister, Amit Shah. The Rajya Sabha also passed a Bill reorganizing the state of Jammu and Kashmir into two Union Territories. These measures have split the nation into two camps – one in favour of the measures and the other, vehemently opposed.
The first steps towards these changes were made on 02 August 2019 when the Indian government issued a travel advisory to all tourists and pilgrims attending the Amarnath Yatra asking them to leave the state, ostensibly due to terror threats. This exodus of tourists and pilgrims was coupled with a massive influx of troops in the region sending the valley into a frenzy of rumours regarding these two unprecedented moves. J&K Governor, Satya Pal Malik in an interview with Republic TV asserted that some part of this troop deployment was in order to relieve those who had been posted in the state for the past year, and the rest was in response to heavy firing along the LoC by Pakistan. As internet and phone services in Kashmir were shut down on 03 August, the rumours of these steps preceding a ‘big move’ by the Modi government were picked up by mainstream media outlets in Delhi. At midnight on 04 August, S. 144 of the CrPC was imposed in the state and several political leaders including Omar Abdullah and Mehbooba Mufti shared their fears of being placed under house arrest.
It is amidst these past few days of turmoil and fear in the state that Home Minister and BJP President, Amit Shah tabled two new provisions in the Rajya Sabha regarding Jammu and Kashmir. These addressed the controversial ‘special status’ that was conferred upon the state when it joined the Union of India.
Article 370 and 35A, as they stood then, provided Kashmir with the following:
- Article 370: Conferred a unique balance between centre and state such that the Central Government could legislate with respect to Kashmir on matters in the Union and Concurrent list, but only in consultation with the local state government. Effectively, the state had autonomy over all matters except defence, foreign relations, finance and communications. It also referred to a Sadar-e-Riyasat (Head of State – Governor of J&K as recognized by the President of India) who was to act only on the advice of the local Council of Ministers.
- Article 35A: This provision was introduced by way of a Presidential Order in 1954 titled ‘The Constitution (Application to Jammu and Kashmir) Order, 1954.’ It prevented non-permanent residents of Kashmir from acquiring employment, immovable property, state aid in the form of scholarships and subsidies, and finally, it restricted their right to settle in the state.
Implemented under India’s first Prime Minister, Jawaharlal Nehru, these provisions have historically been a major cause for controversy. Kashmiris believe that these are the provisions that convinced them to acquiesce to join the Union of India in 1948 while others cannot understand why Kashmir is not treated like any other part of the nation. Several, including Amit Shah (as stated in his Rajya Sabha speech on the issue) blame Nehru for having allowed such a provision to begin with, while others argue that it was necessary to ensure that Kashmir did not head the way of Pakistan. Political narratives aside, the Supreme Court in a landmark judgement in April 2018 held that Art. 370 had acquired a permanent status through years of existence and could not be abrogated. However, with today’s Presidential Order, Article 370 has been abrogated and Article 35A repealed.
Home Minister, Amit Shah tabled the ‘The Constitution (Application to Jammu and Kashmir) Order, 2019.’ It is a Presidential Order – not a Bill, Act or a Notification. This Order makes the following changes to Article 370 and Article 35A:
- Supersedes the 1954 Presidential Order mentioned above, thereby repealing Article 35A with this substitution;
- Makes all provisions of the Constitution of India applicable to the state of J&K;
- It replaces the concept of the Sadar-e-Riyasat, acting upon the advice of the Council of Ministers with just the Governor of J&K.
Hence, the Governor (currently Satya Pal Malik) shall act as the Head of State until such time as elections are conducted; following which, presumably, the Governor will have to act upon the advice of the elected council of ministers. It is important to note that Article 370 has not been ‘scrapped’ as is widely being reported in the Media, but it has simply been amended.
With 125 votes in favour and 61 against, the Rajya Sabha also passed a Bill reorganizing the state of Jammu and Kashmir into two Union Territories. This legislation splits the state into the UT of Leh-Ladakh and the other made up of the remaining area of J&K. Only the Union Territory of J&K will have a legislative assembly. Both UT’s will fall under the jurisdiction of a single Governor. While Ladakh has long expressed a desire to be classified as a Union Territory, the people of J&K have never sought a change in their classification. Thus, for Kashmir, the Constitutional distinctions between the Union, State and Concurrent Lists will not longer apply as the Centre exercises control over all subjects in Union Territories.
For an analysis of the impact of these measures, refer to Part 2.