This edition of Digging Deeper, we will try to understand some aspects. Article 370, 35A, 368… what are they?
Rima M. | Rakesh Sharma"…what has transpired so far, and what we may expect in the coming days
The only problem is they don’t think much about us in America." - Alfrredo Navarro Salanga (Writer from Philippines, once a US territory)
What is the idea of Kashmir all about? Is it just a piece of territory or is it about the people who inhabit it? Is it paradise that was lost after being caught in the crosshairs of politics and violence?
It is hard to take apart the interlaced skeins of the story of Kashmir but on this edition of Digging Deeper, we will try to understand some aspects. Article 370, 35A, 368… what are they? Was 370 temporary, or was it quasi-permanent? And how constitutional/legal have these moves of the government been? Is this realization of the RSS idea of an “akhand hindu rashtra” a step too far?
Let’s find out.
One announcement, many reactions
In what The Telegraph described as a Double Strike, the President on August 5, 2019, signed an order scrapping Article 370 and a bill was moved to make Jammu and Kashmir, a Union Territory. Ladakh was to be separate Union Territory, it was so deemed.
Many news sources including The Telegraph reproduced Home minister Amit Shah’s statement that the government has a signed order from the President that allows privileges under Article 370, enjoyed by Jammu and Kashmir to be removed.
Minutes later, he presented a bill to make Jammu and Kashmir as a Union Territory and Ladakh as another Union Territory.
The gazette notification on the abrogation of Article 370 is titled The Constitution (Application to Jammu and Kashmir) Order, 2019.
The order said and we quote it in full:"In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir, is pleased to make the following Order:—
- (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
(2) It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.
2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:—
To article 367, there shall be added the following clause, namely:—
“(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir—
(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) 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; and
(d) in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.”
This has now since been passed in the Lok Sabha as well.
The question we are asking is also this - does 370 stand abrogated? The answer is no. Legalese will tell you 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. But more on this later.
On the bill suggesting the formation of Jammu and Kashmir and Ladakh Union Territories, the government has said that Jammu and Kashmir will have a legislature and a Lt governor. Ladakh will have no legislature, meaning no elected MPs or MLAs.
News 18 referred to the announcement repealing Article 370 of the Constitution which grants special status to J&K as one fraught with massive repercussions for Jammu and Kashmir.
Firstpost opined and we quote, "the government has been continuously treating Parliament as a rubber stamp and undermining the sanctity of Supreme Court judgments as well. Article 370(3) says that President may, by public notification, declare that Article 370 ceases to operate but the recommendation of Constituent Assembly is necessary. But Supreme Court had earlier stated that Article 370 has become a permanent part of Constitution of India, cannot be abrogated and since Constituent Assembly doesn't exist anymore, the mandatory provision of getting its recommendation cannot be fulfilled. In Parliament, Amit Shah argued that Constituent Assembly means the State Assembly of Jammu and Kashmir and since Jammu and Kashmir is under President Rule right now, all powers of State Assembly will vest with Parliament. Even so, the President brought out the notification even before Parliament, which includes both Houses, could recommend the same, reducing the passage of this resolution to a mere formality."
Shah’s announcement evoked massive uproar in the Upper House with opposition MPs protesting in the Well of the House.
It is to be noted that three of Jammu and Kashmir's most prominent politicians — Mehbooba Mufti, Omar Abdullah and Sajjad Lone were under house arrest amid a siege like security-built up in the state before the announcement. Mufti and Abdullah have since been arrested.
Finally, reacting to the government revoking Article 370 and 35 A in Rajya Sabha, former chief minister and National Conference leader Omar Abdullah released a statement, the gist of which was, "the unilateral and shocking decisions today are a total betrayal of the trust that the people of Jammu and Kashmir had reposed in India when the State acceded to it in 1947. This is an aggression against the people of the state..."
Former CM Mehbooba Mufti followed suit and asked what did Jammu and Kashmir get for acceding to India and said that the move by the Centre will cause what she called as another "partition along communal lines".
She said and we further quote, "Our special status isn’t a gift bestowed upon us. It’s a right guaranteed by the same parliament. A contract entered into by J&K leadership & India. Today the very same contract has been violated. Government of India's intention is clear & sinister. They want to change demography of the only muslim majority state in India, disempower Muslims to the extent where they become second class citizens in their own state.”
INC leader Ghulam Nabi Azad, stated and we quote, "We stand by the constitution of India...we are willing to give up our lives for the constitution, but we condemn any act against the Constitution."
As reactions on social media from largely those who are not in the valley or personally privy to the situation went into an overdrive, historian Ramachandra Guha likened the current President's move to one of his predecessor's — that of Fakhruddin Ali Ahmed.
"President Kovind does a Fakhruddin Ali Ahmed," Guha tweeted to remind that Ahmed was the President when Emergency was imposed by the then prime minister Indira Gandhi. On the night of 25 June,1975, Fakhruddin Ali Ahmed declared a state of Emergency after a meeting with Indira Gandhi earlier in the day without discussion with the Parliament or even the Cabinet of ministers.
In this case, the announcement came after Prime Minister Narendra Modi held a meeting of his cabinet at his house this morning.
So far, BJD, YSRCP. BSP, AIADMK, Shiv Sena and BPF (Assam) have supported the Centre's resolution on Article 370. Some Congress leaders too have come out in support, most notably Jyotiraditya Scindia, part of the Rahul Gandhi inner circle.
NDA ally Janata Dal United has said that it will not support the resolution on Article 370 by following the ideals of JP Narayan, Ram Manohar Lohia and George Fernandes.
Firstpost also added and we quote, "Leaving aside all the Constitutional-ese, Article 370 was, in essence, a compact between the Kashmiri political élite and the Indian republic — in return for wide-ranging powers, the local élite agreed to Indian rule. Today, that deal has ended. This will have a number of consequences:
First, India has always governed in Kashmir through local parties. In 1953, when Sheikh Muhammad Abdullah was seen as supporting independence, he was arrested—but other local leaders, like GM Bakshi and GM Sadiq, came on board with India. Now, New Delhi is saying it doesn't need the help of a local élite and that it'll run the show directly, as a Union Territory. No-one can predict how this will pan out. Second, the bifurcation of Kashmir — many Ladakhis have wanted out of Jammu and Kashmir since at least 1964, when the regional leader Kushak Bakula led an agitation for a separate, centrally-administered province. The then prime minister Narasimha Rao conceded the region some autonomy in 1994. Now, it's become a Union Territory. Kargil's Shi'a always resisted this demand, fearing domination by Leh's Buddhists. The new UT will be walking a communal tightrope."
Firstpost continues, "Third are the future plans. Creating the new Union Territory of Jammu and Kashmir doesn't change anything on the ground. The reason investment and migrants haven't flowed in isn't Article 370, it's because the economy, both agricultural and industrial, is a shambles. China ploughed in over $1 trillion into Xinjiang, where the unemployment rate is now below 3 percent. India doesn't have that kind of money, and then, there's the problem of Pakistan-based terrorism. For anything to really change, terrorism has to end. So, the net-net: There's no doubt today's decisions were a turning point in Kashmir. But we still don't know where things will turn to. Managed well, the government could break down identity politics, and spur on economic growth. Managed badly, it the entire political spectrum in Kashmir will unite against India —with fateful consequences.”
As has been pointed out by some experts, removal of Article 370 ends special status for Kashmir, which was key to its accession to India in 1947. It cannot be overstated that Article 370 made it necessary for the centre to get the state legislature's approval for introducing any policies or constitutional powers to the state.
And as the News18 report reminded us, BJP has been opposing the special status for Jammu & Kashmir for a long time. It had earlier claimed that it could not repeal Article 370 during Atal Bihari Vajpayee government due to lack of majority.
As more responses in favour and against the decision of the government pour in, let us glance at the rather dramatic proceedings in the valley leading to the announcement.
The build up
As we mentioned before, ahead of the announcement, the government had imposed Section 144 in several districts of the state. Internet and mobile services were frozen. The land of Jammu and Kashmir was effectively under lockdown. Families could not communicate with each other; friends could not gather at any public place – scenes that can only remind one of a police state.
Panic began to build up after the Jammu and Kashmir administration cut short the ongoing Amarnath Yatra and asked pilgrims and tourists to leave the Valley at the earliest on Friday. Locals anxiously stocked up on essentials and queued up outside shops and fuel stations. The Anantnag district administration, had to intervene and direct fuel station dealers not to sell petrol or diesel without permission from the district magistrate or an authorised officer.
And as India Today reported, various educational institutions in Kashmir Valley also directed their students to vacate hostels while authorities in Jammu and Udhampur district also ordered closure of schools and colleges as precautionary measures.
All scheduled examinations have been postponed. The authorities have imposed night curfew in Kishtwar, Rajouri districts and Banihal area of Ramban district.
Reports added that additional paramilitary forces have been deployed across the city and in vulnerable areas of the valley and the strength of the security personnel has been increased around installations such as the civil secretariat, police headquarters, airport and various central government establishments in the city. These in addition to the 35,000 already stationed in J&K.
The announcement on Monday interestingly was not much of a surprise to those who had already put two and two together because on Sunday, a meeting was attended by certain parties resolving to fight what they called was an attempt to abrogate the constitutional provisions that guarantee Kashmir, a special status or any move to trifurcate the state or "unconstitutional delimitation". The meeting was attended by NC leader Farooq Abdullah, Mehbooba Mufti, Omar Abdullah, Taj Mohiuddin (Congress), Muzaffar Beig (PDP), Sajad Lone and Imran Ansari (Peoples Conference), Shah Faesal (J&K Peoples Movement) and MY Tarigami (CPI-M).
Decoding Article 370 and Article 35A
In October 2017, Scroll had published a piece by Arvind Kurian Abraham, a lawyer based in Delhi and former director of the Constitutional Law Society of the West Bengal National University of Juridical Sciences, Kolkata. He had reported on a batch of petitions before the Supreme Court challenging the constitutional validity of Article 35A of the Constitution – which gives the Jammu and Kashmir Assembly legal sanction to provide special privileges to “permanent residents.”
This point, he said, had once again become a political flash point and re-opened the debate in relation to the special status enjoyed by the state by virtue of Article 370 of the Constitution.
He further stated that to appreciate the intent of the constitutional provisions vis-a-vis Jammu and Kashmir, it is important to contextualise the analysis of the law with the constitutional history of the state, especially in relation to the special status enjoyed by it in the Union of India.
He went back into time to recall how on August 15, 1947, when India and Pakistan became independent states, the kingdom of Jammu and Kashmir did not cede to either dominion. Instead, its maharaja proposed a “Standstill Agreement” with both countries. In 1946, when Mohammed Ali Jinnah requested Muslims of Jammu and Kashmir to become a part of Pakistan, the Muslim masses rejected this argument and shouted “Go back Jinnah”, as recorded in Justice Adarsh Sein Anand’s seminal work The Constitution of Jammu and Kashmir, published in 1994. Pakistan entered into a Standstill Agreement with Jammu and Kashmir, but India did not. It wanted to hold further negotiations. And on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession whereby Jammu and Kashmir agreed to accede to the Union of India.
The first India-Pakistan war over the accession of Jammu and Kashmir, reminds the writer, led to a delay in the integration of the state with the Union. We quote, "Since the Constitution of India was being drafted during the tussle over Kashmir, it was felt that a transitional provision had to be included in it regarding the relationship between India and the state. This was to be an interim arrangement till the Constituent Assembly of Jammu and Kashmir had been elected to determine the status of the relationship with India. This took shape in the form of Article 370, which bestowed “special status” on Jammu and Kashmir. The special status arose out of the peculiar manner in which the state had acceded to India and not because of the demographic component of its people, as often misrepresented by various sections. Sheikh Abdullah, the unmatched leader of the Kashmiri masses, also sought a special status in light of these circumstances. Prime Minister Jawaharlal Nehru and his deputy, Sardar Patel, held various meetings on this matter in 1949. In Nehru’s letter to Sheikh Abdullah on May 18, 1949, he stated that Sardar Patel and he had agreed that except for subjects conceded to the Union in the Instrument of Accession, it was for the state Constituent Assembly to determine the status of the other subjects. In 1950, the Constitution of India came into effect and in it, Article 370 was the guiding light for the relationship with Jammu and Kashmir."
Now we come to the crux of the matter. As the writer explains, Article 370(1)(b)(ii) and Article 370(1)(d) of the Constitution state that the concurrence of the state government is needed when making decisions under the Union List (comprising items on which the Centre has exclusive power to legislate) and the Concurrent List (made up of items on which both the Centre and states have jurisdiction) apart from the subjects under the Instrument of Accession. Such concurrence is also needed for the extension of Articles of the Constitution of India to the state of Jammu and Kashmir. The power of extending laws to the state of Jammu and Kashmir was to be exercised through orders issued by the president of India. Article 370(2) states that when the Constituent Assembly is convened, the concurrence given by the state government shall be placed before it and it can make decisions regarding the same. This indicates that this was an interim measure to determine legislative and executive relations with the state till the Constituent Assembly had been formed.
In light of today's proceedings, it would be important to reiterate that Article 370(3) states that the president can declare Article 370 to be inoperative, but only with the recommendation of the Constituent Assembly. As the writer puts it, the framers of the Constitution wanted the Constituent Assembly to finally determine the relationship between India and the state. The fact here though is that there is no Constituent Assembly in J&K – it was dissolved in 1957 – thus effectively rendering 370 permanent. Amit Shah’s workaround has been to suggest that the Parliament can act a substitute to the constituent assembly, and that the concurrence of the CA is therefore not required in the case that the parliament gives its go ahead.
To go back into time once again. In 1951, the article states, Constituent Assembly was constituted based on an election that was swept by Sheikh Abdullah’s National Conference. In 1952, Nehru and Sheikh Abdullah entered into the Delhi Agreement whereby it was agreed that Jammu and Kashmir would have full power over subjects other than those acceded under the Instrument of Accession. On February 6, 1954, the Constituent Assembly ratified the accession to India and reiterated its special relationship with the Union of India.
The Constitution of Jammu and Kashmir came into force in 1957, with Article 147(c) stating that no amendment can be made to the Constitution in relation to the provisions of the Constitution of India as applicable to the state; this would, for all purposes, include the relationship enshrined under Article 370. We quote again, "It is important to note that Article 370 cannot be made inoperative without the consent of the Constituent Assembly, but the tampering of the special relationship between India and Jammu and Kashmir as enshrined in the Article is specifically barred by this provision of the Constitution of Jammu and Kashmir, thereby bringing permanency to the state’s special status."
In light of today's event, we can judge for ourselves if constitutional guidelines were adhered to or not.
More about Article 35A
In the Scroll article, Arvind Kurian Abraham explained that Article 35A of the Constitution of India enables Jammu and Kashmir to make a distinction between permanent and non-permanent residents in relation to acquisition of immovable property, settlement in the state and employment, among others.
We quote, "The historical background to the need to make a distinction between permanent and non-permanent residents can be traced back to an agitation by Kashmiri Pandits against the hiring of Punjabis in the state administration, which eventually led to a 1927 law promulgated by Maharaja Hari Singh that sought to provide certain privileges to permanent residents, especially in the purchase of land. Because of the special circumstances surrounding the accession to India and the guarantee of special status, representatives of Jammu and Kashmir felt the law regarding permanent residents needed to continue to preserve their special rights vis-a-vis the rest of the Union of India.
Article 35A was a product of the Delhi Agreement. It enables the state legislature to define “permanent residents” and provide them with special privileges. It also protects such laws from being held as void on the ground that they are inconsistent with or restrict or abridge any rights conferred on the other citizens of India by any provision of Part III of the Constitution."
While discussing the contours of the Delhi Agreement in the Lok Sabha, Nehru stated and we quote from Scroll:
“Our friends from Kashmir were very apprehensive about one or two matters. For a long time, past, in the maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. In the old days the maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So, although most of their rights were taken away from the maharaja under the British rule, the maharaja stuck to this that nobody from outside should acquire land there. And that continues. So, the present government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The state legislature shall have power to define and regulate the rights and privileges of the permanent residents of the state, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing state law should apply."
The text of Article 35A reads as follows and we quote in full.
“Saving of laws with respect to permanent residents and their rights. – Notwithstanding anything contained in this Constitution, no existing law in force in the state of Jammu and Kashmir, and no law hereafter enacted by the legislature of the state.
(a) defining the classes of persons who are, or shall be, permanent residents of the state of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects –
(i) employment under the state government;
(ii) acquisition of immovable property in the state;
(iii) settlement in the state; or
(iv) right to scholarships and such other forms of aid as the state government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”
And as the writer warned, "Seeking complete abrogation of Article 35A without making such a distinction can have a disastrous effect on the already strained relationship between Jammu and Kashmir and the Central government, and must be avoided to maintain the special status bestowed on the state through Article 370 as a result of the peculiar circumstances in which it acceded to India. The Supreme Court should strive to maintain a balance between the special status as constitutionally guaranteed to the people of Jammu and Kashmir and at the same time uphold the fundamental rights of the people."
The Washington Post called the move a scrapping of an Indian constitutional provision that forbids Indians from outside the region from buying land in the Muslim-majority territory. As the paper put it, "In recent days, Hindu-majority India has deployed at least 10,000 troops in Kashmir, with media reports of a further 25,000 ordered to one of the world’s most militarized regions.
Kashmir has grabbed the spotlight in recent days, months after a deadly militant attack on an Indian paramilitary convoy sparked cross-border air attacks and brought India and Pakistan to the brink of war. The recent escalation has come amid offers by President Donald Trump to mediate to resolve the Kashmir issue. While Pakistan welcomed the offer, India rejected it, saying the dispute was between the two countries. In its election manifesto earlier this year, Prime Minister Narendra Modi’s Hindu nationalist Bharatiya Janata Party promised to do away with special rights for Kashmiris under India’s constitution."
As one constitutional law expert summarized the situation, “Article 370(1) allows the President – with the concurrence of the government of J&K – to amend or modify various provisions of the Constitution in relation to J&K. Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).”
He further contended that the presidential order 272 is problematic for two reasons – “first, on the indirect amendment of Article 370(3) proviso via 370(1), and secondly, on the use of the Governor as a substitute for the elected assembly in a matter of this kind – I would submit that there are serious legal and constitutional problems with Presidential Order C.O. 272 – which, of course, forms the basis of both the statutory resolution and the Reorganisation Bill.”
DP Satish wrote a report in News18 to analyse just what this announcement means. He writes and we quote, “The Narendra Modi government has decided to revoke the Article 370, which grants special autonomous status to Jammu and Kashmir, moving ahead with its plan to fundamentally change J&K’s relation to India despite its potential to cause massive unrest in the region."
Article 370 specifies that except for Defence, Foreign Affairs, Communications and ancillary matters (matters specified in the Instrument of Accession), the Indian Parliament, as we said before, needs the state government's concurrence for applying all other laws. Thus, the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
As the writer states, "Similar protections for unique status exist in tribal areas of India, including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only in the case of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan, still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir within the ambit of this Article.
"First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohani, asked in the Constituent Assembly on October 17, 1949: "Why this discrimination please?" The answer was given by Nehru's confidant; the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons, Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still "unusual and abnormal”. Part of the State's territory was in the hands of "rebels and enemies”.”
The writer reminds that in fact, today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of "internal disturbance" without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State.
The writer repeats once again, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended".
That has not aged well, because as of Tuesday evening, The Lok Sabha on Tuesday passed the Jammu and Kashmir (Reorganisation) Bill, 2019 with 370 votes in favour and 70 against it. Having already been passed in the Upper House, the bill now awaits Presidential assent before becoming an Act.In all this legalese and matters of constitutional law, what we have not heard from are voices from Jammu and Kashmir. This is what we will explore in the second part of our podcast tomorrow.Subscribe to Moneycontrol Pro and gain access to curated markets data, trading recommendations, equity analysis, investment ideas, insights from market gurus and much more. Get Moneycontrol PRO for 1 year at price of 3 months at 289. Use code FREEDOM.