Govt scraps Article 370, proposes to split J&K into two Union Territories

Decision could throw up constitutional questions, including sanctity of terms of Jammu & Kashmir's accession to Union of India, and is likely to be challenged in SC

The Narendra Modi government on Monday moved to scrap provisions under Article 370 of the Indian Constitution, which grants a special status to the state of Jammu & Kashmir in the Union of India.

It has decided that Jammu and Kashmir would be turned into a Union Territory with a legislature, similar to Delhi and Puducherry, and the Ladakh division would be made a separate Union Territory without legislature, akin to Chandigarh and most other Union Territories.

Peoples Democratic Party leader Mehbooba Mufti termed the decision “illegal and unconstitutional”, and said, with the scrapping of Article 370, India was now an occupational force in the state.

The Modi government’s decision is set to throw up constitutional questions, including the sanctity of the terms of accession signed between the Union of India and Jammu & Kashmir and is likely to be challenged in the Supreme Court. It could also threaten to internationalise the Kashmir problem.

After the Union Cabinet met on Monday morning, Home Minister Amit Shah announced in the Rajya Sabha that provisions of Article 370 were being scrapped.

The home minister said the Ladakh division of Jammu & Kashmir would be made a separate Union Territory, a longstanding demand of the people of that region. He said the Union Territory of Ladakh would not have a legislature.

Shah said keeping in view the prevailing internal security situation, fuelled by cross-border terrorism in the existing state of Jammu & Kashmir, a separate Union Territory for Jammu and Kashmir was being created. The Union Territory of Jammu & Kashmir would have a legislature.

The ramifications of the decision are not just that Article 370 is sought to be scrapped but also that Article 35A is made redundant. Article 35A empowers the state of Jammu & Kashmir to define who is a “permanent resident” of the state and who is not.

Mufti tweeted: “Today marks the darkest day in Indian democracy. Decision of Jammu & Kashmir leadership to reject the two-nation theory in 1947 and align with India has backfired. The unilateral decision of Government of India to scrap Article 370 is illegal and unconstitutional which will make India an occupational force in Jammu & Kashmir.”

She said the decision would have catastrophic consequences for the subcontinent. She said the Government of India wanted the territory of Jammu & Kashmir by terrorising its people. “India has failed Kashmir in keeping its promises,” she said.

There was an uproar in the Rajya Sabha as Shah announced this while introducing a Bill to provide 10 per cent reservation to economically weaker sections in the state of Jammu & Kashmir in jobs and education.

The Centre was yet to clarify whether it was empowered to bring such changes without the Jammu & Kashmir state legislature ratifying these.

Clause 3 of Article 370 states that the President can, by public notification, declare that this Article ceases to be operative, but only on the recommendation of the constituent Assembly of the State. However, that constituent Assembly has ceased to exist. Will the Centre need to convene a new constituent Assembly to recommend revocation of Article 370?

For the time being, the Modi government is going ahead with getting Parliamentary approval for revocation of Article 370. Most Opposition parties are likely to oppose this. However, as the government has shown during this session, some regional parties (including its allies) staging a walkout at the time of voting can secure it a majority in the Rajya Sabha.

The bigger challenge would be in the Supreme Court, which has in the past recognised the centrality of Article 370 in Jammu & Kashmir’s relation with the Union of India.