ARTICLE 370 (PART-XXI)

(Special Autonomous Status to Jammu & Kashmir)

Temporary, Transitional & Special Provisions

The state of Jammu & Kashmir became a part of India through a Contract known as the Instrument of Accession signed on 26-10-1947 by Maharajadhiraj of Jammu & Kashmir Raja Hari Singh. It was a Conditional merger of the Jammu & Kashmir State in India. Some special provisions were made in our Constitution to make this merger possible such as–

(1) Dual Citizenship

(2) Dual Constitution

(3) Separate flag for Jammu & Kashmir

(4) A Six years tenure of Legislative Assembly

(5) Disrespect of National Flag not being a crime in Jammu & Kashmir.

(6) Supreme Court’s order not fully applicable in Jammu & Kashmir.

(7) Limited powers of Parliament to make laws on Jammu & Kashmir.

(8) RTI not be applicable in Jammu & Kashmir.

(9) Law of Parliament not be applicable in Jammu & Kashmir unless approved by the state legislature.

(10) No reservation for minorities in Jammu & Kashmir.

(11) Non-citizens of Jammu & Kashmir to not be able to purchase land in Jammu & Kashmir.

(12) The Fundamental Right to Property (Article 31) was never applicable in Jammu & Kashmir. (Fundamental Right to Property under Article 31 has already been abolished by 44th CAA 1978).

(13) Fundamental Duties under Part-IV-(A) Article-51(A) were not applicable in Jammu & Kashmir.

(14) DPSPs (Part-IV) were not applicable in Jammu & Kashmir.

(15) The Fundamental Right to Education (Article 21-A) was not applicable in Jammu & Kashmir.

(16) Urdu as the official Language of Jammu & Kashmir.

(17) If a Jammu & Kashmir citizen girl marries a non- Jammu & Kashmir boy, then her citizenship of Jammu & Kashmir used to get void.

(18) If a Jammu & Kashmir citizen girl marries a Pakistani boy, then that Pakistani boy was entitled for the Citizenship of Jammu & Kashmir and was consequently entitled for the Citizenship of India.

(19) Ranbir Penal Code (RPC) was applicable in Jammu & Kashmir instead of Indian Penal Code (IPC) which was applicable in the rest of India.

Till 19G5, the head of the State of Jammu & Kashmir was designated as Sadr-e-Riyasat i.e., President and head of the state government was designated as Wazir-e-Alam i,e. (Prime Minister). After 19G5, these posts were designated as Governor and Chief Minister respectively in the state. Jammu & Kashmir used to have its own Constitution which was adopted on 17th November 1956 and implemented on 26th of January, 1957. The Union government was empowered to make laws for Jammu & Kashmir on just four subjects (Defence, Foreign Affairs, Communications and Ancillary Subject). The law making authority on all other subjects was with the State Legislature.

Earlier to enter into Jammu & Kashmir there used to be a permit system (Just like VISA issued by Jammu & Kashmir government).

Note:

● To oppose the permit system, Jansangh party leader Dr. Shyama Prasad Mukherjee decided to enter Jammu & Kashmir without permit.

● He was arrested by the Jammu & Kashmir Police and died under mysterious circumstances on 23rd June, 1953.

● The ideology of Jansangh now BJP was that a Single Country cannot have two Constitutions, two Presidents, two Prime Ministers, two National Flags, two National Emblems, etc.

Article 35(A)

Article 35(A) of Indian Constitution empowers the Jammu & Kashmir State Legislature to define the permanent residents of the State and provide special Rights & Privileges to those permanent residents. This article was added to the Constitution through a Presidential order on 14th May, 1954 exercising the powers Conferred in clause (1) of Article 370. Article 35(A) deals with

(a) Employment under State Government

(b) Purchase of Immovable Property in the State

(c) Settlement in the State

(d) Right to vote

(e) Right to scholarship, aid by State Government etc.

It was always demanded by BJP to abolish the special status of Jammu & K by scrapping Article 370 & Article 35(A). During the Lok Sabha election in 2014, it was one of the election promises of BJP that after coming to power, they will abolish Article 370 & Article 35(A).

On 5th August, 2019, Union Government revoked the special status granted to Jammu & Kashmir under Article 370 through a presidential order and made the entire Constitution of India applicable to the State. This implied that the Article 35(A) too stood abolished.

(Article 370 is now inoperative even though it still exists in the Constitution).

Many BJP Leaders described the event as realisation of Dr. Shyama Prasad Mukherjee’s dream.

Now the position of State of Jammu & Kashmir is as one of the Union Territories of India with a legislative assembly without any Special Status or Privilege. All the laws of Parliament are now applicable to the UT of Jammu & Kashmir and instead of Ranbir Penal Code (RPC), Indian Penal Code (IPC) now BNS (Bharatiya Nyaya Sanhita) is applicable in UT of Jammu & Kashmir. This was made possible by the Jammu & Kashmir Reorganisation Act 2019.

The Jammu & Kashmir Reorganisation Act, 2019

The Jammu and Kashmir Reorganisation Act 2019 is an act of Parliament. It contains provisions to reconstitute the state of Jammu and Kashmir into two union territories to be known as the union territory of Jammu and Kashmir and union territory of Ladakh with effect from 31st October 2019.

The Jammu and Kashmir reorganisation Bill 2019 was introduced by Home Minister Amit Shah in Rajya Sabha on 5th August 2019. The bill was passed by Rajya Sabha the same day and was passed by Lok Sabha on Gth August 2019 and received assent of the President on 9th August 2019 and became Jammu & Kashmir Reorganisation Act 2019.

This bill was supported by 370 members in Lok Sabha and 125 members in Rajya Sabha. 70 members in Lok Sabha and G1 members in the Rajya Sabha opposed this Bill.

Prior to the introduction of this bill, a presidential order was passed to revoke the special status of Jammu and Kashmir as mentioned in Article 370 of the Constitution which superseded the 1954 Presidential order. The 1954 order had a provision to the Article 3 of the constitution stating that Union would not alter the name, area & the boundaries of State of Jammu & Kashmir. It’s revocation paved the way for the introduction of Reorganisation Bill 2019.

Jammu and Kashmir will have a Legislative Assembly while Ladakh will be without any Legislative Assembly. Both the Union Territories will have Lieutenant Governors. Ladakh will include Leh and Kargil districts while the other districts will be accorded to Jammu and Kashmir. Ladakh will have one Lok Sabha seat while Jammu and Kashmir will have five Lok Sabha seats. All the four Rajya Sabha seats will be from Jammu and Kashmir. The High Court of Jammu & Kashmir will function as High Court for both the union territories.

Legislative Assembly of Jammu and Kashmir will have 114 seats instead of 107. The Tenure of the Legislative Assembly will be of a period of five years.

The Lieutenant Governor of Jammu and Kashmir may nominate two women members to the Legislative Assembly, if in his opinion, women are not adequately represented in the same. Seats will be reserved for Scheduled Castes and Scheduled Tribes in proportion to their population in the union territory of Jammu and Kashmir. At present, two seats are reserved for Kashmiri Migrants (one must be a woman) and one seat from displaced persons of Pak-occupied Kashmir (PoK). So the total seats in J&K legislative assembly may be 114+2+2+1=119.

Shri GC Murmu was the first Lieutenant Governor of the Union territory of Jammu and Kashmir.

Please Note:

(1) Rajya Sabha members are elected by elected members of the legislative assembly. Since the union territory of Ladakh will not be having a legislative assembly, there will not be any representation of Ladakh in the Rajya Sabha. All four members of Rajya Sabha shall be elected by the elected members of the Legislative Assembly of Jammu and Kashmir.

(2) Earlier the Jammu and Kashmir State had 87 (Elected) + 24 (from Pakistan occupied Kashmir)= 111 seats in Legislative Assembly. After the bifurcation of Jammu and Kashmir State, four seats from Ladakh were reduced (87-4+24=107)

Presently in the Union Territory (UT) of Jammu & Kashmir, subjects under the Union Government primarily involve areas outside the local legislature's domain, including Defense, Foreign Affairs, Finance (especially banking/currency), Communications, and importantly, Police & Public Order,

which are under the direct control of the Lieutenant Governor (LG). Parliament retains ultimate authority over all subjects, and the LG acts as the Centre's representative, controlling crucial sectors and key appointments, even with an elected assembly.

Key Subjects Under Union Control:

● Defense & Foreign Affairs: Standard subjects of exclusive central jurisdiction.

● Communications: Also under central purview.

● Police & Public Order: Excluded from the assembly's legislative powers, falling under the LG's domain.

● All India Services & Anti-Corruption Bureau: Controlled by the LG.

● Financial Matters: The LG's recommendation is required for financial bills, and they have final say in prosecution/sanctions.

● Implementation of Central Laws: The full Indian Constitution applies, bringing J&K under central laws for most subjects.

Powers of the Local Assembly (Limited):

● The Legislative Assembly can legislate on subjects in the State List (excluding Police & Public Order) and the Concurrent List, provided laws don't conflict with central acts.

Role of the Lieutenant Governor (LG):

● Acts as the Centre's agent, holding significant executive and legislative authority, including appointing law officers and having final say on critical decisions.

In essence, while J&K has a legislature, the Union Government maintains deep control, especially over law and order and key administrative functions, through the LG.

Note

Mr Manoj Sinha is the present Lieutenant Governor of the Union Territory of Jammu and Kashmir

Shri Kavinder Gupta is the present Lieutenant Governor of the Union Territory of Ladakh.