The Government of India on 5 August 2019 revoked Article 370 of the Constitution that granted a ‘special status’ to the state of Jammu and Kashmir. For the first time after seven decades, the Indian Constitution and all the 890 Central laws have become fully applicable to J&K. This has meant the application of 170 more Central laws to J&K, including progressive laws such as the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1954, the Whistle Blowers Protection Act, 2014, the National Commission for Safai Karamcharis Act, 1993, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2007, the National Commission for Minorities Act, and the Right of Children to Free and Compulsory Education Act, 2009. However, the abrogation has met with fierce opposition, both from political leaders and common citizens, and many calling it ‘unconstitutional’. The essay looks at the history of Article 370, the events leading to its revocation and the situation thereafter.
What is Article 370?
Included in the Constitution on October 17, 1949, Article 370 exempted J&K from the Indian Constitution and permitted the state to draft its own Constitution, have a state flag and autonomy over the internal administration of the state. It restricted Parliament’s legislative powers in respect of J&K. The article was drafted in Part XXI of the Constitution titled Temporary, Transitional and Special Provision.
The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate Article 370 altogether. After consultation with the state’s Constituent Assembly, the 1954 Presidential Order was issued, specifying the articles of the Indian constitution that applied to the state. Since the Constituent Assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
This article, along with Article 35A, defined that the Jammu and Kashmir state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in the state.
Article 370 embodied six special provisions for Jammu and Kashmir:
·It exempted the State from the complete applicability of the Constitution of India. The State was conferred with the power to have its own Constitution.
·Central legislative powers over the State were limited to the three subjects of defence, foreign affairs and communications.
·Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
·The ‘concurrence’ was only provisional.
·The State Government's authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened.
·Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.
·For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this joining with either of the two countries was to be through an Instrument of Accession (IoA).
·Though no prescribed form was provided, a state so joining could specify the terms on which it agreed to join.
·The Schedule appended to the IoA gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications.
·In Kashmir’s IoA in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”.
·Raja Hari Singh had initially decided to remain independent and sign standstill agreements with India and Pakistan.
·But following an invasion from Pakistan, he sought the help of India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.
·India regarded accession as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. India had offered to have a plebiscite taken when the conditions were created.
·On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, India reiterated its commitment to a plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.
·This was a ‘temporary provision’ in that its applicability was intended to last till the formulation and adoption of the State’s constitution.
Abrogation: August 2019
The August 2019 Presidential order stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir. This in effect meant:
·The separate Constitution of Jammu and Kashmir stood abrogated, and a single constitution now applied to all the Indian states.
The President issued the order with the ‘concurrence of the Government of State of Jammu and Kashmir’. This in effect meant the concurrence of the Governor of Jammu and Kashmir since President’s rule was imposed at that time in the state. The order was issued using the 3rd clause of Article 370, which authorised the President of India to declare the article inoperative with exceptions and modifications.
The Indian Home Minister moved a resolution in the Rajya Sabha to give the President the necessary recommendation to declare Article 370 as inoperative. Subsequently, the statutory resolution seeking the revocation of the special status under Article 370 and the bill for the state’s reorganisation was debated and passed by the Rajya Sabha on 5 August 2019 with 125 (67%) votes in its favour and 61 (33%) against it.
On 6 August, the bill for the reorganisation was debated and passed by the Lok Sabha with 370 (86%) votes in its favour and 70 (14%) against it, and the resolution recommending the revocation was passed by 351 votes in favour and 72 against.
·Legal: there is doubt as to whether the concurrence of the government of the state of Jammu and Kashmir has been received. For the past year, the state has been under direct presidential rule under article 356 of the Constitution after the BJP withdrew from an alliance with a regional party and the governor of the state dissolved the state assembly.
According to news reports, the Supreme Court of India has been hearing fourteen public interest litigation petitions on the issue of Jammu and Kashmir. Some of the petitions relate to challenging the abrogation of article 370 and Jammu and Kashmir’s special status. The Court is also hearing a number of petitions that demand an end to restrictions on movement and communication imposed in the Kashmir valley.
·Clampdown: Prior to the revocation of the status, the Ministry of Home Affairs granted approval for the mobilisation of paramilitary security troops into Jammu and Kashmir, citing reason to maintain law and order in the area. The Government of India notified students and tourists, both local and foreign, to leave Jammu and Kashmir.
On 4 August, satellite phones were distributed in central, north and south Kashmir among the security forces. The government thereafter ordered a total communication blackout, shutting down cable TV, landlines, cellphones and the Internet. Many news sources reported an effective curfew.
On 16 August, B. V. R. Subrahmanyam – the chief secretary of Jammu and Kashmir, announced that the government will lift lockdown and remove some restrictions in a phased manner in the Kashmir Valley.
·Scholars argued that the President of India had acted in ‘haste’ and the revocation was an arbitrary misuse of state power. Nobel laureate Amartya Sen criticised the government and regarded the detention of Kashmiri political leaders as an excuse to prevent backlash.
The Indian Government justified its action by saying it would help end violence and militancy in the state and enable people to access government schemes such as reservation, right to education and right to information among other schemes. In past year, the government has ensured that everyone living in the two Union Territories would get a sense of the egalitarian principles that are firmly embedded in India’s Constitution. These developments extend to a wide range of issues like social and political equality, education, jobs, reservations and other rights enjoyed by the underprivileged in the rest of the country.
Apart from these initiatives, the last 12 months have seen several other developments:
·Rehabilitation of the Kashmiri Pandits, who were hounded out of the Valley 30 years ago by militants. 4,000 of them have got jobs in the UT and many others are listed for employment.
·Two Union Territories: rules have been formulated for issuing domicile certificates - a much-needed level-playing field for all residents. The J&K government has also initiated a massive recruitment drive to fill up 10,000 vacancies in the local government; another drive to fill up 25,000 posts is in the pipeline.
·Also on the anvil are revised rules to enable the hitherto disadvantaged groups like Scheduled Tribes, OBCs and economically weaker sections to get employment.
·Other measures which have ensured mainstreaming of the region are the enforcement of the Right to Information Act, 2005, direct supervision of the Central Vigilance Commission with regard to anti-corruption cases and the setting up of the 18th Bench of the Central Administrative Tribunal (CAT) for the UTs of J&K and Ladakh.
“If there is heaven of earth, it is here…it is here…it is here” – the state of J&K is an integral part of India. Historical manoeuvres resulted in it being deprived of the liberal, secular and democratic traditions that India stood for. The abrogation of its special status and the aim at integrating it with the rest of India can be seen as a step towards attaining that. Material benefits of good governance will get implemented in due time. What we should be concerned about is the future of politics in the Union Territory, the meeting of minds of the people of Jammu and Kashmir regions, the creation of conditions for the return of the Kashmiri Pandits with dignity and honour, and promotion of the aspirations of the youth. When conditions improve in the domain of physical security, automatically freedoms will progressively restore and people will aspire for more.
(Source: indianexpress.com / Wikipedia.com / bbc.com / thehindu.com)