Article 370 and Jammu and Kashmir Reorganisation

ONE YEAR OF ABROGATION OF SPECIAL STATUS FROM JAMMU & KASHMIR [EDITORIAL]

Namrata Jeph

The battle for Jammu and Kashmir was and is not merely or even mostly a battle for territory. It is an uncompromising and perhaps uncompromisable struggle for two ways of life, two concepts of political organization, two scales of values, and two spiritual attitudes.

Joseph Korbel

Introduction

The Central Government on August 5 last year revoked the special status of Jammu and Kashmir by abrogating Articles 370 and 35-A and bifurcated the erstwhile state into two union territories.The location of Jammu & Kashmir gives the state strategic importance quite out of proportion to its population. The Kashmir dispute is a perennial source of conflict between the two nations. According to Ralph Bunche, senior UN official, the Kashmir situation cannot be even localized as it has the potential to influence the whole Muslim world

This article attempts to firstly, layout the history of accession of Jammu & Kashmir to India; Secondly the role that Article 370 played in giving it a special status and lastly how the government of India partially abrogated the Article 370 and the mixed response this order has received from the academia. 

The Accession of Jammu & Kashmir to Indian Union

The importance of the state increased after 15th August 1947 when it came to sharing borders with both the new dominions of India and Pakistan. The anomaly of a Hindu ruling a mostly Muslim population was compounded by an accident of geography. The integration of states in the Union of India did not follow a uniform pattern. At the time of independence, the Maharaja Hari Singh of Kashmir expressed hesitancy in joining both India and Pakistan which not just considerably delayed the process but also sow seeds of a situation of ambiguity and political complexity between the two newly formed nations. When the state faced an invasion from the Pakistani army disguised as tribals, the Maharaja sensed acute crisis and a clear threat to his title. Alarmed with these changes the Maharaja first imposed martial law and then finally acceded to India on October 27, 1947. The accession was accepted by the Government of India. However, after this, Pandit Jawaharlal Nehru, the then Prime Minister of India made the issue open to international interference adding a unique complexity to the issue.

The Special Status of Jammu and Kashmir under Article 370

According to the Constitution of India, the State of Jammu and Kashmir forms a part of the Indian Territory. However Article 370 in part XXI  and Article 35A of the constitution provided a unique place  to the state of Jammu and Kashmir in the Indian federation.. Article 370 was one link that connected Delhi with Srinagar and defined the relationship between Kashmir and the rest of India. It was devised to reinforce andprotect Kashmir’s autonomy.Article 370 assured the state of all benefits of independent Kashmir without sacrificing the advantages of being a part of the larger Indian federation and it envisaged a different type of centre-state relationship than the one that exists between the centreand other states. This special centre-state relationship was the result of a peculiar history. Article 370 morally strengthened India’s claim over Kashmir.

Under the purview of Article 370 inter alia, the people of Jammu and Kashmir had dual citizenship, a separate flag for Kashmir minorities, no reservation for minorities as is the case in rest of India; and any constitutional powers or policy introduced by the Centre required state legislature’s concurrenceThe jurisdiction of the Supreme Court of the Indian Union was also limited. The powers of the Indian Union Parliament to legislate for the State of Jammu and Kashmir originally extendedonly to defence, communications and foreign affairs-the subjects delegated to the Indian Union by the Instrument of Accession; these subjects have then been incorporated in details in the Constitution (Application to Jammu and Kashmir) Order, 1950.

However, since 1950 several Articles of the Indian constitution have been extended and applied in Jammu and Kashmirmore than 260 Articles have been applied to Jammu and Kashmir. The Constitution of Jammu and Kashmir has been argued to be identical with the Indian Constitution on powers of Speaker, powers of Deputy Speaker, Legislative Assembly, Governor, Governor’s oath, Privileges, Anti-defection Law. The grant of special status to the state had, however, remained a most controversial and much-debated issue. The people of the Kashmir Valley regard this article as an “Article of Faith” which guaranteed their internal autonomy and Kashmiri identity as well while many in Jammu regard this article as the greatest hurdle in the way of the integration of the state with India. 

Abrogation of Article 370

Article 370(3) provides that via a presidential order the entire article can cease to be operative, provided that a recommendation is made by the Constituent Assembly of the State. The president of India may, by public notification, declare that the article shall cease to be operative or shall be operative with such exceptions and modifications as he may specify. Constitutional Order (C.O.) 272 dated 5 August 2019 brought by the government of India made Article 370 inoperative. This was done by adding a sub-clause to Article 367, which deals with interpretations of the Constitution. Article 370 permits President of India to make modifications and exceptions in other Articles while they are made applicable to Jammu and Kashmir and using this the Government inserted a clause in Article 367 and changed the meaning of some of the crucial words which have been used in Article 370. Meaning of ‘constituent assembly of Jammu and Kashmir’ was changed to Legislative Assembly, and that of ‘Government of State’ to mean Governor acting on the advice of Council of Ministers. The government also passed Jammu and Kashmir Reorganisation Act, 2019 to bifurcate the state into two separate Union Territories: Jammu and Kashmir, and Ladakh.

What is interesting is how this has received an almost equal amount of commendation and criticism from scholars at the same time. Ramchandra Guha, an acclaimed historian raised his concern by calling it authoritarian and arbitrary. Professor Faizan Mustafa on the same line of argument made an interesting observation of how under the President’s rule the Parliament can assume only the powers of an Assembly and cannot express the views of the Assembly and in the case of abrogation of Article 370, the Constitution requires the views of the Assembly be expressed that has not been fulfilled in this case.

On the other hand Senior Advocate Harish Salve, one of India’s foremost constitutional lawyers argued that the mechanism for de-commissioning Article 370 – i.e. using Article 370 to amend Article 367 which is then used to amend 370 – was  the same as that used in the 1960s when Jammu and Kashmir’s Sadr-e-Riyasat and Wazir e Azam were changed to the governor and chief minister and he even refuted the view that the Parliament cannot express the views of the J&K state assembly. This view is supported by Supreme Court’s decision in SBI v Santosh Gupta, where the court opined that“it is clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves.”

Conclusion

One crucial determinant is also the time taken by the Supreme Court to give a verdict on the question of the constitutionality of the order, as more the decision dawdles the more it becomes redundant. The security situation will remain tenuous and militancy will be a constant worry in the state for as long as the foreseeable future. The threat of radicalization of youth remains but the real challenge before the Indian leadership is to win over the people of Kashmir and convince them that their interests are safe in India and that they enjoy the fruits of democracy and autonomy within the Indian federation. We cannot invoke the sanctity of the Constitution when it suits us and call it a mere technicality when it does not suit us.

The views expressed are author’s.

Image credits: The Economic Times

ABOUT THE AUTHOR

Namrata Jeph is currently pursuing law from National Law University Jodhpur and is a Senior Editor at ELS Review.

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