Jammu and Kashmir Statehood Demand

Context

The constitutional status of Jammu and Kashmir has changed significantly since Independence, and it is now a Union Territory with a Legislature.

Key Highlights

• The Jammu and Kashmir Legislative Assembly passed a resolution expressing the urgency of restoring full statehood to Jammu and Kashmir on 28 September 2026. BJP members who had raised objections to some parts of the resolution walked out, leaving it to be passed by voice vote.
• There were a number of amendments that referred to the restoration of Article 370 and Article 35A and the pre-2019 constitutional status, but these were then dropped.
• The development has brought the debate over the difference between “restoration of statehood” and “restoration of the pre-2019 special constitutional status” back.

What Was Article 370?

• Article 370 was included in the Indian Constitution to provide a special status to Jammu and Kashmir following its accession to India.
• In the beginning, Parliament’s powers over the State were limited to those relating to the Instrument of Accession, such as defence, external affairs, and communications, and were governed by a constitutional mechanism provided in Article 370.
• The Constitution of India was slowly implemented in Jammu and Kashmir with changes and exemptions through Presidential Orders.
• In addition, Jammu and Kashmir had its own Constitution which was adopted in 1956 and enforced in 1957.
• This meant that Article 370 had a nature of being an asymmetrical federalism, in which the constitutional relationships between the Union and a particular State were different from those that applied to most other States.

What Was Article 35A?

• Article 35A came into existence by the Constitution (Application to Jammu and Kashmir) Order, 1954.
• It helped the Jammu & Kashmir legislature to carve out the definition of permanent residents and specific rights and privileges for them in fields of property, public service, scholarships, etc.
• It thus played a crucial role in the pre-2019 constitutional clause on the rights of residents of Jammu and Kashmir.

Constitutional Changes of 2019

• With the constitutional changes of 2019, the status of Jammu and Kashmir was significantly changed.

• Abrogation of Article 370

  • In August 2019, Presidential Constitutional Orders applied the entire Constitution of India to Jammu and Kashmir and made the previous special status granted under Article 370 redundant.
  • As a consequence, the Jammu and Kashmir Constitution lost its operational force as the Constitution of India took over as the applicable one over the Union Territory of Jammu and Kashmir.

• Reorganisation of the Territory

  • The Jammu and Kashmir Reorganisation Act, 2019 was passed by the Parliament.
  • From October 31, 2019, the erstwhile State was reorganised into two Union Territories:
  • The state of Jammu and Kashmir, which has a legislative assembly.
  • The region of Ladakh, which is devoid of a legislative body.
• The result was that this shifted the status of Jammu and Kashmir from a State within the Indian Union to a Union Territory under the Constitution of India, which has a framework different from that of States.

What Is the Present Constitutional Position?

• Jammu and Kashmir is presently a Union Territory and has a Legislative Assembly.
• According to the Ministry of Home Affairs, the UT was established on October 31, 2019, and presently has 20 districts.
• It is a Union Territory and therefore Part VIII of the Constitution and the Jammu and Kashmir Reorganisation Act, 2019, are applicable.
• The Lieutenant Governor serves as the constitutionally mandated head of the UT administration in the context of the UT with legislatures.

What Did the Supreme Court Say?

• In its December 2023 decision on the constitutional amendments, the Supreme Court upheld the constitutional validity of the steps taken that had rendered the entire Constitution applicable to Jammu and Kashmir and had upheld the constitutionality of the reorganisation legislation before it.
• The Court noted that once the whole of the Constitution was made applicable, the separate Constitution of Jammu and Kashmir did not have a functional role to play.
• The judgment also acknowledged the constitutional authority under Article 3 which was exercised to bifurcate the erstwhile State into two Union Territories.
• The Court also instructed the conduct of elections to the Legislative Assembly and said that the statehood should be restored as soon as possible, but also recognized the Union’s stance that Ladakh would continue to be a Union Territory.

Statehood vs Special Status

• Restoration of Statehood

  • Statehood would imply bringing Jammu and Kashmir back from a Union Territory to the status of a State in the federal structure of India.
  • It would change the balance of power between the Union and the elected government.

• Restoration of Article 370

  • This would be about the earlier special constitutional linkage between Jammu and Kashmir and the Union.
  • The judgment of the Supreme Court in 2023 has already upheld the constitutional changes of 2019, thus changing the legal landscape significantly from what it was before the constitutional amendments.
• Hence, restoration of statehood and restoration of Article 370 are two different constitutional demands.

Why Does Statehood Matter?

• Federalism

  • Statehood would change the balance of power between the Union and the elected government.
  • It thus raises global issues of Indian federalism and democratic decentralisation.

• Democratic Representation

  • The powers of a State government, as compared to a Union Territory government, are more extensive in terms of powers delegated in the Constitution and administration.
  • Representative governance and institutional autonomy become then closely tied to the issue of restoration of statehood.

• Governance and Accountability

  • Better delineation of responsibility between elected officials and the Union administration may impact accountability of public policy and administration.
  • Meanwhile, the issue of security has been a key concern in the governance scenario of Jammu and Kashmir.

Challenges Ahead

• All legislative, administrative, financial, and institutional mechanisms would have to be adjusted carefully for any change from Union Territory to State.
• The issues of powers of the elected government, public services and financial administration would have to be clarified.
• Security would be critical and continue to be a concern as Jammu and Kashmir is a border state.
• There should also be a clear difference between the constitutional demand for statehood and the political demands about the pre-2019 status.

Way Ahead

• The Union and elected government should have an ongoing dialogue regarding the restoration of statehood, both in terms of constitutionalism and institutions.
• There should be a clear separation of powers between the elected government and the Lieutenant Governor.
• Democratic institutions should be improved and local government and public participation should be developed.
• Security needs and democratic governance should be dealt with in the constitutional framework.

Source: The Indian Express

Mains PYQ

Q. To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss the future prospects of this provision in the context of Indian polity. (2016)

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