Article 370 still part of Constitution

Anil Anand
Jammu and Kashmir has lost its special status and special constitutional relationship that the state had with India. Yes, it is true! Has the Article 370 of the Indian Constitution that defines this relationship been abrogated are removed? The answer is no.
What does he mean when Union Home Minister Amit Shah during the course of debate on the state reorganisation Bill leading to bifurcation of Jammu and Kashmir, said that the statehood could be restored to J&K once normalcy was established. However, he admitted this goal might not be achieved soon. Was he referring to the protracted battle against militancy in Kashmir a long drawn battle? It seems so but the clarity on his certainly not off-the-cuff observation which was missed by many, is still to come.
The state has been divided into two Union Territories (UTs) in a superbly planned and meticulously implemented operation. Ladakh is independently a UT whereas Jammu and Kashmir regions have been clubbed together in the form of another centrally governed territory.
It is definitely a politically deft move but has a controversial side to it. How come the implementation of the move came when those affected by it, positively or negatively, smarted under curfew. With all communications links snapped in Kashmir valley and heavy deployment of forces prevented Kashmiris even from peeping out, Jammu under curfew with communication links on, it takes some sheen out of the perceived populist move- divesting the state of its special status. Firstly no consultation with the stake-holders including Kashmiris, Jammuites and Ladakhis and secondly restrictions on their movement and speaking, some charges would certainly be in the air regarding arbitrariness of the process.
What also makes the entire exercise unique is the fact that it is for the first time after the linguistic reorganisation of states in 1956 that a state has been converted into a UT. The grant of UT status is as per the aspirations of Ladakhis but in the case of Jammu and Kashmir particularly Jammu many brows are already being raised though the idea is still to fully sink and euphoria is still at its peak.
Did Shah kept a safety valve option when he made a passing remark about option of reverting to statehood still open? Nothing can be said on this with any surety but one thing is clear that alongside dynamism behind this courageous decision there certainly is an air of caution. And rightly too! So, what does that mean? It is apparent that the Centre is ready for a long haul against militancy and at the same time tries and pursues all other processes- political as well as administrative.
The partial abrogation of Article 370 which automatically led to the controversial Article 35A which had resulted from a Presidential order of 1954 getting eliminated, has given long overdue relief to West Pakistani refugees who had all along been fighting for their right to education, property, government jobs and above all right to contest and vote in the state elections, and removed gender bias that flowed through the handle of 35A.
Why the term partial abrogation of Article 370 or has Article 370 been scrapped? What is the status of Article 35A now?
These are significant questions enveloped in the heap of legal and constitutional technicalities but seeking a reply from the public point of view.
According to Faizan Mustafa a noted Constitutional law expert, the Constitution (Application of Jammu and Kashmir) order, 2019 issued by President, Ram Nath Kovind in exercise of his powers conferred by Clause (1) of Article 370 of the Constitution, has not abrogated Article 370. While remaining intact in the statute book, it has been used to withdraw the special status of Jammu and Kashmir. The Presidential order in turn has extended all provisions of the Indian Constitution to Jammu and Kashmir. This according to him is the first time that Article 370 has been used to amend Article 367 ( which deals with interpretations) with reference to Jammu and Kashmir, and this amendment then in turn has been used to amend Article 370 itself.
Article 35A flows from the spirit of Article 370, and does not appear in the main text of the Constitution but appears in Appendix 1. It had empowered the J &K Legislature, in the old scheme of things also to define who permanent residents of the state could be, and their special rights and privileges. Since the new Presidential Order has extended all provisions of the Indian Constitution to Jammu and Ladakh, it all but stands withdrawn.
Did it, the reorganisation of state, require a Constitutional amendment to be passed by two thirds majority in Parliament? That is the normal perception about such cases. However, Article 3 of the Constitution of India empowers the Parliament to amend the Constitution by a simple majority to change the boundaries of a state, and to form a new state.
Is Article 370 temporary in nature? This question has been in the centre of debate ever since this Constitutional provision came into being. The debate has gained more currency in recent times and even Home Minister, Amit Shah had vociferously referred to “temporary” nature of Article 370 in Parliament.
In the Constitutional scheme of things Article 370 is the second Article of Part XXI of the Constitution which has been described as “Temporary, Transitional and Special Provisions. There is more than one view on this. It is temporary in nature as the Constituent Assembly of J &K was conferred the right to modify/delete/retain it which decided to retain it.
Another view was that it is temporary in nature until a plebiscite had been held to know the choice of the people of the state. It was only last year that the Government in reply to a question in Parliament had said that there was no proposal to remove Article 370.
However, the Supreme Court had in April 2018, stated that the word “temporary” in the head-note notwithstanding, Article 370 was not a temporary provision. In another observation made in SBI versus Zafar Ullah Nehru case in 2016, the Apex Court had observed that J&K has a special status, and that Article 370 was not temporary.
In this backdrop there are chances that the entire issue concerning the nature of Article 370 and actions taken thereof to reorganise J&K could invoke a legal scrutiny. As it is some cases related to this and Article 35 A are already being heard by the Supreme Court.
The Presidential order can certainly be challenged with respect to the fact that Article 370 gave sweeping powers to the President. It is another matter that a review of the entire issue by a Constitution Bench of the Court would be a time consuming process.
Nevertheless, decision to divest J&K of special status and reorganising the state in a single stroke of pen is definitely a courageous decision. It would be naive to adjudge that it has done justice to all sections and regions of the state. However, the clever ploy of the Government to undertake this exercise under the cover of fighting and eradicating militancy does provide a safety valve for the time being.
Notwithstanding the legal options, it would be imperative upon the Central Government and the BJP leadership to ensure that communication channel with mainline politicians particularly in Kashmir valley were not broken in order to ensure that the new provisions could be implemented and sustained. After all, it is the political leadership who have to act between the Government and the people.