Debate over Jammu and Kashmir special status

Context

• The Centre on Monday requested the Supreme Court to debate on the special status granted to the State of Jammu and Kashmir, saying it was both a sensitive and constitutional matter.

The case

• A PIL plea filed by a Delhi-based NGO, We the Citizens,
• challenging that the J&K government, given the State’s special independent status under Articles 35A and 370, was discriminatory against non-residents as far as government jobs and real estate purchases were concerned.
• Retorting, the State government debated that its special status was sourced from the 1954 Presidential Order, which gave distinct rights to the State’s permanent residents.
• The hearing comes in the backdrop of an earlier Jammu and Kashmir High Court, which ruled that Article 370 presumed a place of permanence in the Constitution and the feature was beyond improvement, repeal or abrogation.
• The court said Article 35A gave “protection” to existing laws in force in the State.
• It also observed that the President under Article 370 (1) was conferred with power to extend any provision of the Constitution to the State with such “exceptions and modifications” as may be deemed fit subject to consultation or concurrence with the State government.

Article 370

• The Article 370 of the Indian constitution deals with the provision of certain special powers provided to the state of Jammu and Kashmir.
• It grants a ‘temporary’ autonomous status to the state of Jammu & Kashmir.
• The article was aproduct of Kashmir’s accord to Indian after the Independence.
• As the things stood, the people of Kashmiri valley (Muslim majority) were apprehensive and blanched about their identity getting lost in a Hindu dominated country.
• There was alsorising pressure from the radical Islamic groups to give autonomy to the government of Jammu & Kashmir.
• To address theissue, the Indian government gave momentary special status to the state of Jammu and Kashmir under this article.
• This article has gone through many alterations since its origin in 1947.
• Article 370 is beyond amendment, repeal or annulment, in as much as the Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal.

History

• In the original Constitution of Jammu and Kashmir, the provisions of Article 370 were described as “temporary” measures.
• Under the agreement of 1975 signed between Sheikh Abdullah and Indira Gandhi it was agreed upon that Abdullah will give up the demand for plebiscite and special status of Jammu and Kashmir will continue;
• It would no longer remain a temporary measure.
• The agreement somehow could not be implemented owing to the differences and the Order of the President could not be issued.
• Jammu and Kashmir is the only state in the country having a Constitution of its own within the framework of India Union.

Provisions of Article 370

• Except for Defense, Foreign Affairs, Finance and Communications, the Indian Government needs the State Government’s nod to apply all other laws.
• The central govt. has no power to impose financial emergency in the state. Emergency can be imposed only on the grounds of internal disturbances and imminent danger from a foreign enemy.
• Therefore, the state government has the control on how it needs to govern the state without worrying about the consent of the central government.
• Due to this article, Indian nationals belonging to other states cannot buy land or property in the state of J&K.
• Woman who marries a person belonging to any other state loses her right to ownership; however, this is a contentious matter.

Recent development

• The current form of this article is a very diluted and thin one.
• Almost all the institutions of the Indian Government are in place in the state including the election commission of India.
• It is true that earlier the J&K government had a Prime Minister and President but those things have been worked out gradually.
• With the recent change in the central government there were rumours about this article getting revoked which sparked some serious debates around the country.
• With the recent alliance between the BJP and the PDP in Jammu and Kashmir it is quite evident that there would be no changes in the article 370 and will remain as it is.

Article 35A: Current issue

• The Centre has expressed its reservations in responding to a petition before the Supreme Court that calls for declaring as “unconstitutional” the Article 35A, which grants the Jammu and Kashmir legislature powers to define the state’s “permanent residents”.
• The Article 35A of the Constitution provides special rights and privileges to the “permanent residents” of J&K.
• A provision which came into effect in 1954 when the President used the powers conferred on him by Article 370 to introduce the ‘Constitution (Application to Jammu and Kashmir) Order 1954.’
• Under the said provision, which appears in the Constitution as an “appendix” and not as an amendment to the Article 35, citizens from other parts of the country are prohibited from acquiring immovable property in the J&K, taking up employment under the state government, availing of the state-sponsored scholarship schemes, or settling permanently anywhere in the state.
• The petition, filed by a Delhi-based NGO, We the citizens, demanded that the Article 35A should be held “unconstitutional” as the President could not have “amended the Constitution” by way of the 1954 order,
• and that it was only supposed to be a “temporary provision”. The Article was never presented before Parliament, and came into effect immediately.
• The state of J&K has defended the provision, saying in its affidavit that the Article has become “a permanent feature of the Indian Constitution”.

Criticism

• There is a clause in Article 370 itself, which says that this law cannot be abolished by anyone other than the J&K constituency.
• It is due to this that some people are of the view that Article 370 can never be abolished.
• But another interpretation is that by constituent assembly, it means J&K assembly, which thereby holds the power to abolish this law.

Conclusion

• On the whole there is a need to come to a cordial solution about this issue.
• The article 370 is already diluted enough and its obvious abrogation will only make matters worse because the very constitution of Jammu and Kashmir states that it is an integral part of the Union of India.