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Scrapping of Article 370: Making of History

Home Minister Amit Shah announced in Parliament that India is ending the special status' of Jammu and Kashmir with immediate effect. The Centre has scrapped Article 370 of the Constitution and bifurcated the state into two Union Territories - Jammu & Kashmir and Ladakh. The Presidential Order will need to be ratified by both Houses and face huge legal challenges. The BJP has moved to fulfill its founder's vision. The implications are huge. Kashmir can now go either way

What is the big announcement?

So, the speculations were true after all. The massive military build-up in Kashmir wasn’t for nothing. The Bharatiya Janata Party (BJP) has made a definitive move to fulfill its long-cherished dream and correct what it sees as ‘a historic blunder’.

The Union Government of India on August 5 scrapped Article 370 of the Constitution that grants special status to Jammu and Kashmir, with an order saying “it shall come into force at once". The abrogation follows the Centre introducing the Jammu and Kashmir Reorganization Bill in Parliament.

Union Home Minister Amit Shah earlier in the day moved the Rajya Sabha, announcing the government has decided to repeal Article 370. Shah also said the government has decided to bifurcate the state into two Union Territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature.

This Bill also provides for reservation in appointment and promotions in state government posts, and admission to professional institutions for certain reserved categories, for socially and educationally backward classes. It defines socially and educationally backward classes to include persons living in areas adjoining the ‘Actual Line of Control’.

The scrapping of Article 370 will have far-reaching repercussions on the restive state as the abrogation suspends the clause that allowed all laws to be first be ratified by the state assembly, which currently stands dissolved. President Ram Nath Kovind has exercised his power under Clause 1 of Article 370. The presidential order has done away sections under Article 35A, which provides special privileges to “permanent residents" of the state.

Since last year, the state has been ruled by the Indian central government, after Prime Minister Narendra Modi’s ruling party, the BJP, withdrew from a coalition there with Peoples Democratic Party (PDP), a regional party. Back in the Valley, three of Jammu and Kashmir's most prominent politicians — Mehbooba Mufti, Omar Abdullah and Sajjad Lone are under house arrest amid a massive security-built up in the state. Internet services and mobile services have been suspended in several places and all public gatherings are banned in Srinagar district as section 144 (curfew) was imposed from midnight.

“The entire constitution will be applicable to Jammu and Kashmir state,” Shah said, ending the state’s rights to make its own laws.

Why is this move cleverly planned?

It does seem that this move was planned a year in advance and was designed to exploit one loophole in Article 370 that could help the government bypass Parliament for now.

The increased security deployment, curfew-like restrictions and house arrest of political leaders in Jammu and Kashmir and the absence of efforts to conduct state elections was finally explained when the Union government proposed a bill to scrap Article 370 of the Indian Constitution which provides special powers to the state. More importantly, the government didn’t wait for the bill to be passed for scrapping 370. It found a temporary way out.

The President of India under Section (3) of Article 370 can issue a proclamation to annul Article 370 with concurrence from the J&K constituent assembly.Since the constituent assembly no longer exists, so the J&K assembly would have to agree to the move. Since there is no J&K assembly as of today, hence all powers of the state assembly reside in the Union Government. The state is presently under the President's Rule.
The passing of this Order will face major legal scrutiny, as the reference to the Constituent Assembly of J&K, as required under the proviso to Article 370(3), has been dispensed with. During the discussion on this Bill, when Shah made a reference to the Order that would immediately scrap Article 370, there was a huge disruption in Parliament, prompting Rajya Sabha Chairman Venkaiah Naidu to state that the discussion will only be around the Reservation Bill for now.

By bringing the Valley directly under New Delhi’s control, the center ensured that it didn’t need to take recourse to a tortuous legal-constitutional route to dismantle Articles 370 and 35A. And by turning J&K into a union territory, the government doesn’t want state parties to play any effective role there (though, technically, there will still be a legislative assembly in J&K).

Historian Ramachandra Guha likened the current President's move to that of Fakhruddin Ali Ahmed. "President Kovind does a Fakhruddin Ali Ahmed," wrote Guha on Twitter. Ahmed was the President when Emergency was imposed by then Prime Minister Indira Gandhi. On the night of June 25,1975, Fakhruddin Ali Ahmed declared a state of Emergency after a hush hush meeting with Indira Gandhi earlier in the day. A grave matter like the Emergency was approved without discussion with the Parliament or even the cabinet of ministers.

Here is the full text of government's proposal (order) on revoking Article 370:


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. (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"."

Since when has the BJP wanted to do this?

Revocation of Articles 370 and 35A has been a part of the long-standing ideological position of the BJP on J&K. What is more, top BJP leaders, including Modi and Shah, had sought popular support in the recently concluded national election on the promise of withdrawing J&K’s special status. The party’s landslide victory in the election shows widespread public backing of such a move in the country. But all this really goes back to the roots of the contentious article. It goes back to the founder of the BJP.

The man who established the link between the BJP and J&K is Dr Syama Prasad Mookerjee, a Bengali barrister, educationist and once-member of Jawaharlal Nehru’s Cabinet, who died on June 23, 1953 in Srinagar Jail, where he had been imprisoned for violating prohibitory orders issued by the state government of Sheikh Abdullah. Two years earlier, in 1951, Mookerjee had founded the Bharatiya Jana Sangh, the political arm of the Rashtriya Swayamsevak Sangh (RSS), and the predecessor and first avatar of the BJP.

The process of integration of Jammu & Kashmir with the Indian Union was long and tortuous. Negotiations on the precise status of the state vis-à-vis the Union continued well into the summer of 1952, five years after Independence. In July of that year, after Sheikh Abdullah met with Nehru and his senior Ministers in New Delhi, an agreement was drafted defining the contours of J&K’s autonomy. It was agreed that J&K’s flag would be flown side-by-side with the Tricolour; in case of internal disturbances, India would not be able to send forces without permission from the state government; residuary powers which, in the case of all states lay with the Centre would, in the case of J&K, rest with the state; and no ‘outsider’ would be able to buy land or property in the state in order that the possibility of a change in the population profile of the state could be forestalled.

But Sheikh Abdullah wanted more. He declared that only J&K would decide what powers to give to India, and to what extent the writ of the Supreme Court would run in the state. He informed the young Karan Singh, the Dogra yuvraj who was the Head of State, that if he “did not break up with the reactionary elements”, he would be deposed like his father, Maharaja Hari Singh.

By “reactionary elements”, the Sheikh meant the Hindus of Jammu, who were agitating for full integration with India, raising the slogan, which was endorsed by Mookerjee, “Ek desh mein do vidhaan, do pradhaan, do nishaan, nahin chalega, nahin chalega” (There cannot be two constitutions, two heads, two symbols in India). The Jammu Hindus had been loyal subjects of the Maharaja; also, they feared the extension of Sheikh Abdullah’s socialist land reforms to Jammu, which had already resulted in big (and mostly Hindu) landowners in Kashmir losing vast tracts of their land.

In Jammu, the leadership of the agitation against the Valley-based Abdullah’s National Conference was with the Praja Parishad, a political party founded in 1949 by the veteran local leader Prem Nath Dogra. Sheikh Abdullah was contemptuous of the Parishad, dismissing them as feudal reactionaries. In 1951, the National Conference won all 75 seats to the J&K Constituent Assembly after the Parishad boycotted the election protesting alleged unfair practices.

Syama Prasad, the son of the legendary jurist and educationist Sir Asutosh Mookerjee, had been in politics since 1929, and had left Nehru’s Cabinet following disagreements on a range of issues, but mostly on Jammu & Kashmir. On October 21, 1951, he had become the founder president of the Jana Sangh. The new party contested the elections of 1952, but could win only three seats in Parliament.

Mookerjee was not able to persuade Nehru and Sheikh Abdullah to climb down. The Prime Minister insisted that the Parishad should first call off its agitation; Mookerjee wanted that the government should announce talks before anything else. With matters deadlocked, Mookerjee took the agitation to the streets of Delhi. Jana Sangh workers, along with those of the Hindu Mahasabha and the Ram Rajya Parishad, offered satyagraha outside police stations, and courted arrest. By April 1953, as many as 1,300 protesters had been arrested.

On May 8, 1953, Syama Prasad started out for Jammu, with the intention of heading to Srinagar thereafter. Sheikh Abdullah’s government issued orders restricting his movement and, after Syama Prasad proceeded regardless, arrested him on May 11. Syama Prasad was lodged in jail in Srinagar.

In the beginning of June, he took ill, and complained of a fever and pain in his legs. On June 22, he suffered a heart attack, and passed away on June 23, 1953. His body was flown to Calcutta the following day and was greeted by an outpouring of grief and support. The BJP has never shied away from accusing the Congress of murdering Mookerjee.

What is happening in Kashmir today is also a revenge story on the Congress party. The BJP now has the numbers and is as politically powerful today as the Congress was in the 1950s. Conventional wisdom said the party would not take up the sensitive issue of Article 370 right now, with no electoral gains in sight, but here we are – at the climax of their unfinished agenda.

Where does Article 370 come from?

The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted 'iron clad autonomy' for the state, which Centre didn't comply with.

Why exactly did Nehru need to agree to Abdullah’s demand? Dr. Amitabh Mattoo, former Vice Chancellor of Jammu University, in an article for The Hindu explained it thus: "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”.

So, the Government of India, acknowledging the limited nature of accession, Resolutions of the United Nations and the dispute between India and Pakistan as regards territory and accession of the State, incorporated a Special Article in the Constitution known as Article 370.

According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government's concurrence for applying all other laws. Thus the state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.

Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

Dr B R Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370, which was then written by Gopalaswami Ayyangar on the insistence of Jawaharlal Nehru, in ‘consultation’ with Kashmiri leader Sheikh Abdullah.
Enter 35A

The basic principles committee of the J&K Constituent Assembly, which was set up in 1951, presented its report to the Constituent Assembly in February 1954. As a part of the report, an annexure which listed out the provisions of the Constitution of India, besides Articles 1 and 370, that should be made applicable to J&K. This annexure included, among other Articles, Article 35A.
In 1954, the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet made an order called Constitution (Application to Jammu and Kashmir) Order with effect from May 14,1954 and applied Article 35A to the State as a new provision in the Constitution.

The controversial 1954 order followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir. Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of J&K.
Article 35A gives the Jammu and Kashmir Legislature a carte blanche (complete discretionary power) to:
decide who are ‘permanent residents’ of the State
and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.

The provision mandates that no act of the state legislature coming under it can be challenged for violating the Constitution of India or any other law of the land.

Who believes what about the legality of the move?

The validity of Article 370 has been questioned time and again.
Can it be debated on the floor of the Parliament? Well, yes. Experts have said that it is temporary in nature and avenues to change it were yet to be explored by lawmakers (until the current move). Constitution expert and former Secretary General of the Lok Sabha Subhash Kashyap, said this Article is not barred from a debate on the floor of the Parliament. "Article 370 under the Constitution has been ascribed as a temporary provision and not a special provision. There are provisions in the Constitution - temporary, transitional and special. Temporary is the weakest. The question is - how can be it ended and when shall be ended," Kashyap told recently.

However, many other legal experts point out that removing Article 370 comes with riders. "There are practical problems in removing Article 370. There are a number of presidential orders issued under Article 370 extending a number of statutes and other provisions applicable in other parts of the country to J & K. If 370 go without any alternative, it will create practical difficulties", said Kumar Mihir, Advocate on Record in Supreme Court.

Regional parties in Kashmir have been calling the attempts to revoke Article 370 an aggression against the people. They believe the move is both illegal and unethical.

President of the Jammu & Kashmir Peoples Democratic Party and former chief minister of J&K Mehbooba Mufti, who was placed under house arrest along with former chief minister Omar Abdullah, tweeted condemning New Delhi's move. "Today marks the darkest day in Indian democracy. Decision of Jammu and Kashmir leadership to reject two nation theory in 1947 & align with India has backfired. Unilateral decision of Government of India to scrap Article 370 is illegal & unconstitutional which will make India an occupational force in J&K," she said in first of many tweets. "It will have catastrophic consequences for the subcontinent. Government of India's intentions are clear. They want the territory of J&K by terrorizing its people. India has failed Kashmir in keeping its promises.” "Already under house arrest & not allowed to have visitors either. Not sure how long I’ll be able to communicate. Is this the India we acceded to?”

Omar Abdullah, Vice-President of National Conference, also issued a statement on the matter. "Government of India's unilateral and shocking decisions today is a total betrayal of the trust that the people of Jammu & Kashmir had reposed in India when the State acceded to it in 1947 — the decisions will have far-reaching and dangerous consequences.” "This is an aggression against people of the State as had been warned by an all-parties meeting in Srinagar yesterday.” "GOI has resorted to deceit and stealth in recent weeks to lay the ground for these disastrous decisions. Our darkest apprehensions have unfortunately come true after the GOI and its representatives in Jammu and Kashmir lied to us that nothing major was planned.”

Pakistan has reacted on expected lines, using this as an opportunity to bring more eyeballs to the region and hoping to arouse US President Donald Trump’s interest in the dispute even more. "Pakistan strongly condemns and rejects the announcements made today by the Indian Government regarding the "Indian Occupied Jammu and Kashmir". The "Indian Occupied Jammu and Kashmir" is an internationally recognised disputed territory. No unilateral step by the Government of India can change this disputed status, as enshrined in the United Nations Security Council (UNSC) resolutions. Nor will this ever be acceptable to the people of Jammu and Kashmir and Pakistan. As the party to this international dispute, Pakistan will exercise all possible options to counter the illegal steps. Pakistan reaffirms its abiding commitment to the Kashmir cause and its political, diplomatic and moral support to the people of "Occupied Jammu and Kashmir" for realisation of their inalienable right to self-determination," said the official statement from Pakistan Ministry of Foreign Affairs.

How much will things change on the ground?

Leaving aside all the Constitutional-ese and the legalese, 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 TerritoryNo-one can say 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 of Ladakh will be walking a communal tightrope.

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 are 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.

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