Kashmir: How govt used Article 370 to kill Article 370

In a major development, Union Home Minister Amit Shah moved a resolution in the Rajya Sabha to make Article 370 inoperative in Jammu and Kashmir. Interestingly, Amit Shah in his statement made in the Rajya Sabha invoked the same Article 370 to make it inoperative.

Clause 3 of Article 370 empowers the President to declare the special status granted to Jammu and Kashmir under the Article inoperative anytime. A Presidential Order was issued using this provision to implement what the Bharatiya Janata Party had promised in the Lok Sabha election held in April-May, and which had been the party's long-standing demand.

Article 370(3) reads, "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"

Article 370 accords special status to Jammu and Kashmir in many respects - giving the central government authority only over external affairs, defence and communication. Article 370 relates to "temporary provisions with respect to the State of Jammu and Kashmir" and limits "the power of Parliament to make laws for" the state to a specified list of subjects.

Amit Shah also presented a resolution for reorganisation of Jammu and Kashmir. Ladakh will be a separate Union Territory without a legislature while the Jammu and Kashmir will be a Union Territory with a legislature.

This move by the Narendra Modi government came as a surprise. It was being speculated that the government would scrap Article 370 but many brushed off the idea saying the Supreme Court is seized with multiple cases relating to Article 370 and Article 35A.

Instead of scrapping Article 370, the government used the power given by the same Article to the President to make the provision ineffective.

Scrapping of Article 370 would, otherwise, require a constitutional amendment under Article 368. But by invoking Article 370(3), the government has cleverly bypassed the amendment route.

Tabling of resolution for adoption of the Presidential Order led to huge pandemonium in the Rajya Sabha. Oppoisiton leaders including Ghulam Nabi Azad opposed the move alleging that the government has "murdered" the Constitution.

Defending the move, Amit Shah said the Narendra Modi government has followed what was done by Pandit Jawaharlal Nehru in 1952 and 1962. Pandit Nehru and then Jammu and Kashmir Prime Minister Sheikh Abdullah had agreed on the Delhi Agreement in 1952 providing special privileges to the people of Kashmir on the matters of property ownership on the principles of hereditary. A Presidential Order was also implemented in 1965.

This move by the Modi government, if and when gets approval of both the houses of Parliament, would mean that India's Constitution gets full applicability in Jammu and Kashmir.

The separate constitution of Jammu and Kashmir will cease to be in operation.

The separate Ranbir Penal Code will give way to the Indian Penal Code.

Article 35A, making distinction between the permanent residents of Jammu and Kashmir and the outsiders, will also cease to have any effect.

The reservation laws will apply in jobs and education in Jammu and Kashmir like rest of the Indian states. Outsiders will be eligible for admission in colleges funded by the Jammu and Kashmir government and jobs in state government offices.

Purchasing land and owning property by people, considered outsiders till now, would be possible. This was considered a major reason preventing corporates setting up big units in Jammu and Kashmir. The government has argued that removal of restriction on property ownership by outsiders will pave way for prosperity in Jammu and Kashmir.

Kashmiri women, who marry a non-Kashmiri, and their children would no longer lose their right of inheritance.

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