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Explainer: What has changed in Jammu & Kashmir

The BJP on August 5th, 2019 fulfilled its election promise of removing the special status for Jammu and Kashmir in India’s Constitution. The Special status was withdrawn by invoking the same Article 370 which had been seen as firewalling the autonomy of Jammu and Kashmir. 
 
So, what are the constitutional issues in — and arising out of — this development? What will change in the state and the country? What can be the basis of a possible legal challenge to the decision of the government?
 
Has Article 370 been scrapped?
 
The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.
 
The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”. 
 
This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.
 
What is the status of Article 35A now?
 
Article 35A stems from Article 370, and was introduced through a Presidential Order in 1954. Article 35A does not appear in the main body of the Constitution — Article 35 is followed by Article 36 — but appears in Appendix I. Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
 
Monday’s Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. Therefore, the discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A. 
 
This provision is currently under challenge in the Supreme Court on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. However, Monday’s Presidential Order, too has amended Article 367 without following the amending process.

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