The fifth of August 2019 will go down as a historic day, not only in India, but also the world. The Constitution (Application to Jammu and Kashmir) Order, 2019, has removed the special status accorded to the state of Jammu and Kashmir under Article 370 in Part XXI (Temporary, Transitional and Special Provisions) of the Constitution of India. By extension, Article 35A has also been repealed, as it was introduced as part of The Constitution (Application to Jammu and Kashmir) Order, 1954, which was implemented under the presidential power under Article 370. The move has garnered criticism from some quarters that have interpreted this Order to be an imposition on the residents of the erstwhile State of Jammu and Kashmir (J&K). On the other hand, the Order mentions that the president has made it with the concurrence of the “government" of the state of Jammu and Kashmir. It is notable that the government and the legislative assembly of the state have not been in existence since 20 December 2018, when President’s Rule was imposed in the state and, subsequently, extended on 3 July 2019. Inevitably, significant repercussions are to ensue, following the implementation of the Order.

First, S.1 (2) of The Constitution (Application to Jammu and Kashmir) Order, 2019, mentions that it shall come into force “at once", which can totally transform existing laws.

Second, S. 2 of the Order includes an amendment to Article 367 of the Constitution, and mentions that all references to “this" Constitution (meaning The Constitution of India) in the context of Jammu and Kashmir shall now be construed as “the" Constitution. Herein lies the landmark implication, as it means that there will be no separate Constitution for the state of Jammu and Kashmir from now on.

Third, the office and the designation of the Sadr-i-Riyasat of J&K shall no longer be in place, as the governor of Jammu and Kashmir will be the only authority.

Originally, Article 370 (3) gave power to the President to declare the article inoperative or operative with exceptions and modifications, subject to obtaining prior recommendation of the Constituent Assembly of the state of J&K before issuing the notification. The Order replaces “Constituent Assembly of the State" with “Legislative Assembly of the State", which, in the absence of a Legislative Assembly, can be interpreted as authorizing the President to eventually unilaterally convene the Order.

The repeal of Article 35A has removed the concept of “permanent residents of the state of Jammu and Kashmir", which means that the restrictions on citizens residing outside the state of J&K, with regard to employment, acquisition of immovable property, settlement and scholarships, and other aid, shall no longer be valid. The repeal, read with Entry 32 of the Union List could also have important consequences with respect to “property of the Union". This would provide a great boost to the economy, and trade, commerce and tourism could really flourish.

A petition challenging the constitutional validity of the Order may not pass muster with the court easily, as the Order does not seem to have any technical flaws, as explained above. Perhaps, it would soon be appropriate to call the state of Jammu and Kashmir the erstwhile state of Jammu and Kashmir.

Shreya Mishra is assistant professor of law at Maharashtra National Law University, Nagpur.

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