Jammu & Kashmir: Home Minister Amit Shah introduces move to scrap special status
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Jammu & Kashmir: Home Minister Amit Shah introduces move to scrap special status

Bar & Bench

It seems that the rumours surrounding the Centre’s intention to scrap the special status granted to the state of Jammu & Kashmir have come true.

In the Rajya Sabha today, Home Minister Amit Shah introduced The Constitution (Application to Jammu & Kashmir) Order, 2019 amidst a massive uproar.

As the per the Order, all provisions of the Constitution of India will apply to the state of J&K, with a few exceptions and modifications.

The Order effectively states that the special status granted to the state under Article 370 of the Constitution would no longer stand.

“All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu & Kashmir…”

The Order has been passed in accordance with the President’s power under Article 370(3), which states,

“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: Provided 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.”

The passing of this Order has been criticised, as the reference to the Constituent Assembly of J&K, as required under the proviso to Article 370(3), has been dispensed with. The state is presently under President’s Rule.

The latest Order would put an end to the Constitution (Application to Jammu & Kashmir) Order, 1954, which listed out provisions of the Constitution of India that would not apply to J&K.

Among the provisions of the 1954 Order is that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.

The Jammu & Kashmir Reorganisation Bill, 2019

The annulment of this particular provision paves the way for the Centre to introduce the Jammu & Kashmir Reorganisation Bill, 2019. This Bill seeks to declare J&K as a separate Union Territory with  a Legislature. A move has also been made to make Ladakh a Union Territory without a Legislature.

Section 3 of the Reorganisation Bill states,

“On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely:— “Kargil and Leh districts”.”

Section 4 states,

“On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3.”

The Bill further provides that the Governor of J&K will now be known as the Lieutenant Governor of the Union Territories of J&K and Ladakh.

Moreover, Article 239A, which applies to the Union Territory of Puducherry, shall also apply to the Union Territory of J&K. This provision enables Parliament to create a body which will function as the Legislature of the Union Territory, as well as a Council of Ministers. Clause (2) of Article 239A states that any law made towards this purpose shall not be deemed to be a Constitutional amendment under Article 368.

The 1954 Order also called for the introduction of Article 35A to the Constitution. This provision granted special rights to permanent residents of the J&K with respect to employment by the state government, acquisition of immovable property, and settlement in the State.

It further added a proviso to Article 368 of the Constitution, which deals with amendment of constitutional provisions, stating,

“Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370”.

Shah had introduced the Order during the discussion on the Jammu & Kashmir Reservation (Amendment) Bill, 2019. This Bill provides for reservation in appointment and promotions in state government posts, and admission to professional institutions for certain reserved categories, for socially and educationally backward classes. It defines socially and educationally backward classes to include persons living in areas adjoining the Actual Line of Control.

However, during the discussion on this Bill, Shah made a reference to the Order that would effectively scrap Article 370. This created a huge disruption in Parliament, prompting Rajya Sabha Chairman Venkaiah Naidu to state that the discussion will only be around the Reservation Bill for now.

Before the 2019 Lok Sabha Elections, the BJP had released a manifesto reiterating its long held view that Article 370 of the Constitution, which grants autonomy to J&K in certain respects, must be abrogated.

Read the Jammu & Kashmir Reservation (Amendment) Bill, 2019:

Jammu-and-Kashmir-Reservation-Amendment-Bill-2019.pdf
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Read The Constitution (Application to Jammu & Kashmir) Order, 2019:

Constitution-Application-to-Jammu-Kashmir-Order-2019.pdf
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Read the Jammu & Kashmir Reorganisation Bill, 2019:

Jammu-Kashmir-Reorganisation-Bill-2019.pdf
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Read the The Constitution (Application to Jammu & Kashmir) Order, 1954:

Constitution-Order-1954.pdf
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