Abrogation of Article 370: Constitutional or Unconstitutional?

Introduction

Jammu and Kashmir (J&K) has always been a matter of debate since decades. Since 1947 (partition) it has been a bone of contention between India and Pakistan. The step taken to remove the special status of J&K was a very risky affair. Being a make or break decision, it could have created a raucous in the state. However, as the Central Government had a proper road map for going about the amendment, things went on with ease. Presently, it is being said that the Fundamental rights of the residents of J&K are being curtailed under the BJP regime. However, if we talk about the Congress’s regime, Sheikh Abdullah (SA) was put under house arrest, people’s Fundamental Rights were curtailed. Although, by contrasting the two regimes, the author is not trying to support the curtailment of the Fundamental Rights of the people of J&K. Neither the author is trying to advocate that if something bad has happened in the past, it should happen in the present. Various debates regarding the Constitutionality of the amendment have been arisen. But if we look into the entire chain of events in a holistic manner, the move should have a good impact on J&K.

Article370 has become a matter of great debate in the recent past. The issue pertaining to the special status of J&K has always been in the limelight. However, with the passing of the J&K Reorganisation Act, 2019, the amount of discussion has manifolded. The amendment actually has limited the power of the Central Government. Earlier, when J&K had their own Constitution, the Central Government amended their Constitution at the own sweet will of the Central Government. But now due process of law will be followed. Still, the constitutionality of the amendment has been challenged.

Analysis

The circumstances around (pre and post) independence and intervention by United Nations

The issue of J&K mainly began during the time of the integration of India. India was going to get its independence through the India Independence Act. Both India and Pakistan were going to get freedom simultaneously. There were more than 560 princely states during the time of partition.[1] They were given three choices, viz. 1. Either come to India; 2. Alternatively, go to Pakistan, 3. Or be independent. Sardar Vallabhbhai Patel and V.P. Menon together took the responsibility to integrate all the princely states to India. The smaller states acceded to the country without creating any fuss. A few princely states were adamant and were not willing to accede to India, viz. Hyderabad, Junagadh, Bhopal, Travancore and Kashmir.[2]

All the aforementioned princely states finally decided to join India after continuous manoeuvring by Patel and Menon, except for Kashmir over which the tussle for accession was still on. SA who played a pivotal role in the Indian freedom struggle, wanted Kashmir to be a secular state. He led a movement to stop Kashmir from becoming a part of the Pakistan. Harisingh detained SA contending that he is creating unrest in the Kashmir valley. Harisingh wanted the state to be independent so that he can continue his reign. He feared that if he would accede to any of the countries, he’ll have to lose his throne.

Pakistan was eager to make Kashmir its part to complete its dream map. Jinnah decided to invade Kashmir as he felt that he would get the support of the people because they were Muslim. Akbar Khan was given the control to lead the invasion. He assembled a tribal-Muslim-army. By the time these tribal-Muslims reached Uri, a considerable number of soldiers of the Kashmir’s army had joined them. Harisingh got scared by the incident. He asked for assistance from India and approached Patel. This information was conveyed to Nehru and Mountbatten. Mountbatten advised not to assist Kashmir until and unless it accedes to the country otherwise India will not have any justification to enter into the war. Mehr Chand Mahajan and Menon tried to persuade Harisingh so that he signs the Instrument of accession (IoA) if Harisingh wanted to save Kashmir. Finally, on 26/10/1947, the IoA was signed by Harisingh.[3] Mountbatten finally signed the IoA on 27/10/1947.[4] The tribal Muslims had annihilated Baramulla. They had reached the outskirts of Srinagar. The residents of Srinagar were scared. The Indian troops reached Srinagar and pushed the invaders from the outskirts of Srinagar. At this time due to prolonged pressure that was exerted by Nehru on Harisingh, SA was released from the detention. SA, along with his party (J&K-National-Conference) helped the Indian army to a great extent to push away the Muslim tribal-army.

Jinnah was furious, and he contested the validity of the IoA that was signed by Harisingh and Mountbatten. Moreover, Jinnah contended that the IoA was signed by Harisingh under India’s pressure. Jinnah and Mountbatten met on 01/11/1947 in Lahore. During the meet, Jinnah expressed his inability to accept the accession and demanded that the will of the public should be taken into consideration, to which Mountbatten agreed and added, a plebiscite will be done after things cool down in the state. On 02/11/1947, Nehru gave a speech in which he mentioned that plebiscite should take place in J&K. Post his speech, the demand for plebiscite used to be in the airs. The war that was going on for J&K went on till 31/12/1947.

The Indian Government went to the UN, and filed a complaint to stop Pakistan’s infiltration and force them to remove their troops.[5] The UN Commission for India and Pakistan passed a resolution on 13/08/1948. The resolution had three components, viz. 1. Ceasefire, 2. Truce agreement (provisions for removal of troops), and 3. Others (agreement for plebiscite).[6] The third part was accepted by India but was rejected by Pakistan. Pakistan contended that a fair plebiscite might not take place. As per the ceasefire agreement, a temporary Line of Control (LoC) will be created whenever and wherever the war ends. The LoC was created after the war ended on 01/01/1949 with the formation of the ceasefire line.[7] After the LoC was drawn, around one-third of Kashmir was occupied by Pakistan and the remaining was under India.[8]

State of affairs after 1949

A condition precedent was kept in front of Hari Singh when he was signing the IoA, and as per the condition, SA was to be made the temporary PM of J&K during emergency, to which Hari Singh agreed. SA became the PM of J&K in 1948. When the drafting of the Constitution was taking place, a few representatives were chosen to represent J&K in the Constituent Assembly. They were: SA, Motiram Baigra, Mirza Afzal Beg, and Maulana Sayeed Masoodi.[9] After all the discussion that took place in the Constituent Assembly, Article306(A) was brought up in the draft of the Constitution on 26/11/1949. When the final Constitution was brought, Article306(A) became Article370.

What does Article370 say?

Article370 was contained in Part-XXI (‘Temporary, Transitional and Special Provisions’) of the Indian Constitution. Article370 contained three parts.[10] Article370(1)(a) said that Article238 will not be applicable in J&K. Article238 classified the states into four distinct classes viz., A, B, C, and D. Article238 was removed by the 7th Constitutional Amendment, 1956.[11] J&K was placed in ‘part-B’ states. ‘Part-B’ states include states which were governed by ‘Raj-Pramukhs’. Special status was given to such states through Article238. However, after the amendment, it was declared that there will be only two classes, one as per Part-VI, which will be termed as states, and the second which are in Part-VIII will be termed as Union Territories. Article370(1)(b) talks about the scope of the Indian Parliament in making laws for J&K. It has two parts, the first part states that the Parliament can make laws on defence, external relations, communication, which were decided while signing the IoA. Moreover, to decide whether the Parliament can make law on a particular subject or not, the Parliament should consult with the state of J&K. Article370(1)(c) said that only two Articles of the Constitution will apply in J&K, and they are Article1 and Article370. If any other Article has to be made applicable in J&K, it has to be brought in through the assent of the President and consultation and concurrence of J&K, this has been asserted by Article370(1)(d). Article370(2) propounds that if the current government of J&K concurs with the Indian Government on some of the subjects, the said concurrence will become valid only after the it gets approved by the Constituent Assembly of J&K. Article370(3) posits that Article370 can be removed by a public notification issued by the President, but the condition precedent is that such notification should be issued only after the recommendation from the Constituent Assembly of J&K.

The Delhi Agreement

When the Constitution of India was enacted, only two Articles were made applicable to the state of J&K, and they were Article1 and Article370. No other Article was applicable to the state, to discuss the procedure that shall be followed to make other Articles functional in the state, for this reason, a talk was held between Nehru and SA in 1952. One of the outcomes of this agreement was that the flag of India would be given the same respect as given to it in other states, apart from that, the state of J&K will have its own flag. The head of the state will be called Sadar-i-Riyasat, which will be elected by the State Legislature.[12] There will also be a Prime Minister for J&K as well. The Supreme Court became applicable to the state of J&K. Various other provisions of the Indian Constitution were also made applicable to the state of J&K. There was also an agreement on the State Subject Law which was passed by Harisingh in 1927. This State Subject Law was brought into force by Hari Singh to prevent outsiders from buying land in J&K and becoming a permanent resident of J&K. Nehru and SA reached a consensus that this law will remain in force even after J&K has acceded to India.

When all of these agreements were being entered, an intelligence report suggested that SA might backtrack from these negotiations.[13] It was professed that SA does not want full integration of the state with the Union of India. Amidst all these negotiations and reports, SA got arrested on the grounds of sedition. Furthermore, in his place, Bakshi Ghulam Mohammad became the Prime Minister of the state. So, the Indian Government renegotiated this agreement with Bakshi, and finally, through a Presidential Order of 1954, the other provisions of the Constitution were made applicable to the state of J&K.

Article35-A

Article35-A is the same State Subject Law of 1927. This article gives the power to the Legislature of J&K to decide who will be termed as a permanent resident of J&K. Furthermore, give them certain privileges and benefits which won’t be available to any other person other than a permanent resident of J&K. These benefits are hereby stated:

  1. No outsider (one who is a non-permanent resident of J&K) can purchase immovable property in the state. Nor can an outsider permanently settle in the state.
  2. No outsider can get a government job in J&K.
  3. No outsider can get scholarship in J&K.
  4. No outsider can get aid of similar kind (similar to that of a scholarship).

It may be noticed that out of more than five hundred princely states, J&K was the only princely state which had the liberty to negotiate the terms while acceding to India. After the presidential order of 1954, the Constituent Assembly of J&K was set up in the year 1956 which designed, drafted and laid down its own constitution.

The Constitution of J&K had 158 articles, 13 parts and 7 schedules.[14] The first amendment of the aforementioned Constitution was done in the year 1959. Through this amendment many alterations were made, but the most significant of them was giving power to the Election Commission of India to conduct elections in the state. India witnessed a war with China in 1962 and in 1964 Nehru felt the need to bring an article to control the situation of J&K as the state of affairs were very tense. So, through an amendment, Article 356 was made applicable to the state to control the state. With the passage of time, more and more amendments were brought.

Return of SA to power

India also engaged in a war with Pakistan, in which Pakistan got defeated. A number of developments took place while SA was under arrest. The nomenclature of the head of state that was changed during the Nehru-SA talks, was again restored back to Chief Minister from Prime Minister and Governor from Sadar-e-Riyasat respectively. Also, it was evident that the plebiscite won’t take place anymore and hence its demand clamped down. the popularity of SA had declined when he returned after serving the arrest. As people felt that SA’s stance had become genteel towards the accession with India, he was released from detention. Indira-Sheikh accord took place and SA was brought to power again and was made the Chief Minister of the state. This was treated as a breach of faith of the Kashmiris by SA. SA managed the affairs from 1975 to 1982. SA died in the year 1982, and immediately Farooq Abdullah (son of SA), was brought into power.

The rise of Militancy in J&K

Indira Gandhi was assassinated in 1984 and soon after that Rajiv Gandhi came to power. Both Rajiv Gandhi and Farooq Abdullah were new politicians and it was assumed that they will work together towards the betterment of the nation as well as J&K. Militancy began rising from 1986 in J&K. And since the 1987 election, things went out of hand. This was the time when Article 356 was brought into action. While the elections were taking place, the J&K Liberation Front were on the rise and it was feared that they might win the elections and rule the state.[15] It is contended that the Central Government interfered to such an extent that the election was won by Farooq Abdullah. Nonetheless, JKLF felt that no solution can be found out through peaceful talks, and they began armed protest. And soon after that, president’s rule was imposed in the state for quite a long time. Moreover, in 1990, an act named AFSPA J&K (Armed Forces Special Powers Act) was passed. And it took around ten to fifteen years to suppress the militancy. Farooq Abdullah demanded the things to be restored as per the 1954 agreement.

The role of BJP in abrogating the Article 370

Nothing significant was taking place since 2002. And in 2014, Narendra Modi the representative of BJP became the PM of the country. One of the agendas of BJP was to revoke Article370 and get rid of the special status of J&K. In the first tenure of Narendra Modi, no such step took place. Farooq Abdullah said: “Modi cannot remove Article370, 35-A from J&K”.[16] In the 2019 Lok Sabha elections, BJP again came to power, and this time they mentioned the removal of Article370 in their manifesto, and promised the removal of the special status as soon as possible.[17]

In 2014 J&K legislative assembly election, no party had one with majority, and hence no party could have formed a party of its own accord.[18] Out of 87 seats, BJP had won 25 seats, INC had won 12, JKPDP had won 28 and JKN had won 15.[19] An alliance was formed between BJP and PDP. And Mehbooba Mufti was made the Chief Minister of the state. BJP pulled out of the alliance in the year 2018. A few parties tried to form the government, but no one succeeded. And Governor’s rule was imposed in the state. Within a few months, Satyapal Malik was appointed as the Governor of J&K.[20] He sent a report to the President of India that forming a party might lead to manifold corruption as the buying or selling of MLAs or MPs might take place. This report was sent on 20th June, 2018. Moreover, Governor’s rule was imposed in J&K from 20th June, 2018 for six months as per Article 92 of the Constitution of J&K. On 19th December, 2018, the Governor sent another report asserting that no government can be formed in the state. As the term of the Governor’s rule cannot extend beyond six months as per the Constitution of J&K, Article356 of the Indian Constitution should be brought into force. So, Article356 after the President’s assent came into operation. Article356(1)(b) avers that, when the President’s rule has been applied to a state, the Parliament, or any other body under the Parliament can act as the Legislative Assembly of that particular state.[21] So it is evident that the Parliament itself, is now acting as the Legislative Assembly of J&K and the Constituent Assembly had already dissolved in 1957.

On 5th August, 2019, four events took place in the Rajya Sabha. First, a Presidential Order was passed in the Rajya Sabha. Then two resolutions were passed in the Rajya Sabha. And after some time, the ‘J&K Reorganisation Bill, 2019’ was brought into place. The said order was passed as under Article370(3).

It can be inferred that BJP effortlessly scrapped Article370 as it had planned everything in a proper manner. The internet was shut down while the Bill was being passed. Section144 of the IPC had been imposed to put everything under control. The separatists were put under house arrest. Security personnel were also deployed to suppress any unrest or outbreak that might take place by the militants. Through the J&K Reorganisation Act, 2019, the state of J&K has been divided into two Union Territories, Ladakh and Kashmir. There would be a Legislative Assembly in J&K (under Article239-A), but no such Legislative Assembly would be in Ladakh (Article239).

 

 

Conclusion

Any work or any step that is taken by an individual or a party has both positive and negative aspects. There are always three forms of reaction to any move that is taken by a party, viz. 1. The move is supported; 2. The move is opposed; and 3. Neutral stance. Being a student of Political Science, as well as analysing the situations with a neutral aspect, the author believes that the said move of scrapping the special status of J&K is a valorous move by the BJP government. They brought in the amendment by taking due measures so that a state of turmoil does not gets concocted.

John Dalberg-Acton has rightly said: “Power tends to corrupt and absolute power corrupts absolutely”.

The modern democracy runs as per the Constitution and not as per any religious text. The Constitution lays down a set of rules that help in running a nation. In a modern nation, the monopoly of power is in the hands of the state. The prime objective of the Constitution is to limit the power of the state. This is the idea of Constitutionalism. No state ever wants to make a federal Constitution per se, because in a federal Constitution there is distribution of power between the nation and the state, and no central government would want to have a bar on their power. India opted for a federal Constitution because ours was a huge nation having a vast diversity.

The step taken by the BJP is a very progressive one. However, a better way of going about the abrogation of Article370 would have been creating such a situation so that the people themselves would have asked for removing the special status. No such demand was brought into the limelight so far by the people of J&K, because a conducive environment was not provided to them. The move will create more opportunities in J&K, more people will have better opportunities, commerce will expand, the economy and GDP will also have a good impact. BJP has brought many changes that were not even proposed by other parties, and the abrogation of Article370 adds up to their list of laudable decisions.

 

[1] Ian Copland, The Princely States, the Muslim League, and the Partition of India in 1947, February, 1991, available at https://www.jstor.org/stable/40106322?seq=1#metadata_info_tab_contents/ (Last visited on March 18, 2020).

[2] Adrija Roychowdhury, Five states that refused to join India after Independence, August 17, 2017, available at https://indianexpress.com/article/research/five-states-that-refused-to-join-india-after-independence/ (Last visited on March 18, 2020).

[3] Instrument of accession of Jammu and Kashmir (the Republic of India and Jammu & Kashmir), October 27, 1947, available at http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf/ (Last visited on March 18, 2020).

[4] Id., 3.

[5] United Nations Security Council (UNSC), The India-Pakistan Question, 46-51_08-16, (December 18, 1951) available at https://www.un.org/en/sc/repertoire/46-51/Chapter%208/46-51_08-16-The%20India-Pakistan%20question.pdf/ (Last visited on March 18, 2020).

[6] A.G. Noorani, The Peacekeepers of Kashmir: The UN Military Observer Group in India and Pakistan, February 03, 1996, available at https://www.jstor.org/stable/4403745?seq=1#metadata_info_tab_contents/ (Last visited on March 18, 2020).

[7] Agreement between military representatives of India and Pakistan regarding the establishment of cease-fire line in the state of Jammu and Kashmir (India and Pakistan), July 27, 1949, S/AC.12/TC.4, available at https://peacemaker.un.org/sites/peacemaker.un.org/files/IN%20PK_490729_%20Karachi%20Agreement.pdf/ (Last visited on March 18, 2020).

[8] Vindu Goel, What is Article 370, and Why Does It Matter in Kashmir, August 05, 2019, available at https://www.nytimes.com/interactive/2019/world/asia/india-pakistan-crisis.html/ (Last visited on March 18, 2020).

[9] Rajya Sabha, Constituent Assembly Membership, November, 1949, available at

https://rajyasabha.nic.in/rsnew/constituent_assembly/constituent_assembly_mem.asp/ (Last visited on March 18, 2020).

[10] The Constitution of India, Art. 370.

[11] GKTODAY, Constitution 7th Amendment Act, 1956, September 12, 2016, available at https://www.gktoday.in/gk/constitution-7th-amendment-act-1956/ (Last visited on March 18, 2020).

[12] Brig Anil Gupta, Genesis of Articles 370, 35A & Delhi Agreement, August 02, 2017, available at https://www.dailyexcelsior.com/genesis-articles-370-35a-delhi-agreement/ (Last visited on March 18, 2020).

[13] Central Intelligence Agency, Special Report SA and the Kashmir Issue, April 22, 1964, available at https://www.cia.gov/library/readingroom/docs/CIA-RDP79-00927A004400090003-4.pdf/ (Last visited on March 18, 2020).

[14] The Constitution of Jammu and Kashmir, November, 1956.

[15] Mudasir Ahmad, A Brief History of the J&K Liberation Front, Now Banned Under UAPA, March 23, 2019, available at https://thewire.in/security/kashmir-jklf-ban-yasin-malik/ (Last visited on March 18, 2020).

[16] NEWS18, Modi Cannot Remove Article 370 35-A From J&K: Farooq Abdullah, May 24, 2019, available at https://www.news18.com/news/politics/modi-cannot-remove-article-370-35-a-from-jk-farooq-abdullah-2158567.html/ (Last visited on March 18, 2020).

[17] BJP’s Manifesto, available at https://www.bjp.org/en/manifesto2019/ (Last visited on March 18, 2020).

[18] Election Commission of India, Jammu & Kashmir 2014, available at https://eci.gov.in/files/file/3797-jammu-kashmir-2014/ (Last visited on March 18, 2020).

[19] Id., 18.

[20] The Hindu, Satya Pal Malik appointed as J&K Governor, August 21, 2018, available at
https://www.thehindu.com/news/national/satya-pal-malik-appointed-as-jk-governor/article24745791.ece/ (Last visited on March 18, 2020).

[21] The Constitution of India, Art. 356(1)

निष्पक्ष और जनहित की पत्रकारिता ज़रूरी है

आपके लिए डेमोक्रेटिक चरखा आपके लिए ऐसी ग्राउंड रिपोर्ट्स पब्लिश करता है जिससे आपको फ़र्क पड़ता है
हम इसे तभी जारी रख सकते हैं अगर आप हमारी रिपोर्टिंग, लेखन और तस्वीरों के लिए हमारा सहयोग करें.

One Response

  1. That was really an awesome article, i mean that was not biased, and very well analysed and covers the whole background of the issue as well as the cause was also properly defined above. That was great article.

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