Article 370:- A Brief Overview from 1952-2019.

In this article we aim to understand the situation that led to the drafting of article 370, which gave special status to the erstwhile state of Jammu and Kashmir. We shall also come across the various legal developments, issues associated with Article 370 and various Presidential Orders that were passed to encompass other special provisions under the article. Finally, we see the impact of abrogation of Article 370 on J&K and reactions from opposition parties and International Spectrum.

History of Article 370

On 15^th August, 1947; both India and Pakistan got freedom from the British rule to exist as independent nations. Now the question was whether J&K will merge with Pakistan or with India because both the countries eyed this strategic location. But there was a catch 22 in the situation when the then ruler of J&K, Maharaja Hari Singh, chose neither to merge with India nor with Pakistan and decided to remain as an independent nation.

This decision of Maharaja Hari Singh suffered a setback when on 20^th October, 1947 Azad Kashmir Forces with the help of Pakistan Army attacked the frontiers of the state. Maharaja Hari Singh approached India for help and India owing to its very nature agreed to help and quickly dispatched its troops to staunch the advance of Azad Kashmir Forces. In return India asked for the signing of the ‘Instrument of Accession’. Hence, an ‘Instrument of Accession’ was signed between the then PM of India and Maharaja Hari Singh. The instrument was ad hoc (temporary) in nature and was to be finalized by taking into consideration the wishes of the people of J&K by the help of a plebiscite. Further, the clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to accept any future Constitution of India. The State was well within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the Central Government.

Legal Issues in the Parliament

Dr. Babasaheb Bhimrao Ramji Ambedkar, the chairman of the drafting committee at that time, was against the provisions of article 370 and thus denied Jawaharlal Nehru to draft the article. Now to keep his political prestige, in 1949, Jawaharlal Nehru, the then Prime Minister of India directed Gopal Swami Ayyangar, who was the minister without any portfolio in the first cabinet of Nehru, to draft Article 370 in consultation with Sheikh Abdullah. It is to be noted that Gopal Swami Ayyangar was the former Diwan to Maharaja Hari Singh and Sheikh Abdullah was the influential leader of Jammu and Kashmir at that time.

Legal developments in Chronology

On 17^th October 1949, Indian Constituent Assembly adopted article 370 under Part XXI of the Constitution titled, “Temporary, Transitional and Special Provisions”. This article gave power to legislate upon the all the matters of the state except for defence, communications and international relations.

Original text of Article 370:

Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification

The Presidential Order of 1952

The Presidential Order of 1952 passed on 15^th November, 1952, at the request of the state government amended article 370. It replaced the phrase “recognised by the President as the Maharaja of Jammu and Kashmir” by “recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat”. This step was taken to abolish Monarchy in the state.
Under this article some of the special provisions are as follows:
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.
The tenure of the Legislative Assembly of J&K is 6years that is different from the rest of Indian union which is 5 years.
The people of the state had dual citizenship i.e. if a woman married a man from another state within the Indian union tends to lose the citizenship of Jammu and Kashmir. But if she marries a Pakistani man then she is entitled to retain the citizenship. Secondly, all the residents of J&K are entitled to the Indian citizenship.
No rights are given to Panchayats in Kashmir.
People from minority or non-Muslim community are neither allowed to contest elections nor given any benefit of reservations.

Presidential Order of 1954

After the Delhi Agreement of 1952, Presidential Order of 1954 was passed to include several other provisions under Article 370. These provisions are as follows:
It gave the power to the state to have a separate flag along with the union flag and the state flag would have the same status.
The central power was given the power to impose emergency but only on the grounds of external aggression. However, to exercise this power on the context of internal disturbances was subject to the concurrence of the State Government.
Fundamental rights were extended to the state. However, State Legislature was empowered to legislate upon the matter of preventive detention for the purpose of internal security.
This agreement led to the adoption of article 35A, which gave exclusive rights to the permanent residents of J&K with regards to immovable property. This implies that citizens of India were not entitled to buy property in J&K.
It also empowered the State Legislature to legislate on the privileges of permanent residents of J&K in regard to settlement in the state and employment.
After this an agreement was signed between the then PM Indira Gandhi and J&K Prime Minister Sheikh Abdullah in 1974, which stated that the head of the state also known as Sadar-i- Riyasat would be elected by the state legislature.

Legal Impact of Article 370 (1954- 2019)

Character of Permanence: As the state’s constituent assembly dissolved after adopting the Constitution for the state, the only authority warranted to extend powers to the Central Government or accept Central institutions vanished. Constituent Assembly dispersed itself without making any recommendations on the abrogation of Article 370, thus it was deemed to have become a permanent feature of the Indian Constitution.
Persistent Inequality: The autonomy of the State in dealing with the internal matters led to inequality on various fronts:

Women were denied equal employment, educational and property ownership rights. The state government officials used to issue a “permanent resident certificate” which differed on the basis of gender. The certificates issued to females were marked “valid only till marriage”. If a woman married to an Indian outside of Kashmir, she was denied a new certificate. These certificates were required by the Jammu and Kashmir state officials from anyone seeking to acquire immovable property, education or employment within the state.
The Indians outside of Jammu and Kashmir were not allowed to acquire immovable property within the territory of state. They were also not entitled to government jobs, scholarships or other benefits.
The people from non- Muslim community were not allowed to contest elections and were frequently discriminated over the Muslim community members.

Economic disadvantages: With the state’s autonomy in place, industrialization was given the least priority by the State officials. People from other parts of the country were neither allowed to invest in the projects of the state nor were allowed to set up businesses. As a result the development of Jammu and Kashmir suffered a lot.
Educational set back: In the field of education state students were not allowed to sit for competitive exams of other states. As a result there was less competition and their growth and development suffered.
Healthcare structure: Private healthcare sector in the State has not come up like in other States with around 80% of the healthcare facilities being provided by the public sector. In the absence of private sector, there is huge rush of patients in the Government institutions which affects the quality of patient care available. There are many Primary Health Centres and Sub Centres functioning from rented buildings with some being under staffed. As per the Indian Public Health Standards (IPHS) norms, J&K still requires 69 new community Health Centres. Even for implementation of Ayushmaan Bharat, hospitals and nursing homes would be required in private sector for its implementation.
Rise of terrorism: The GDP of the state was very low. This simply implies that the incomes of the people were meager. Due to this the youth felt frustrated and to channelize their energy they found inclusion in terrorist groups as the right path. Also the state’s less educational and employment opportunities added further fuel to the fire. When the young population of the state didn’t find any medium to earn and sustain their families they were diverted towards terrorism.
Provisions like RTI not applicable: Right to information or file complaints regarding the working of Government was not available to the residents of the state. This was a threat to the essentials of Democracy i.e. to have an accountable and a transparent government. RTI has proved to be very effective in fighting against corruption but in its absence it can be assumed that the politicians want to escape from accountability thus refusing to abrogate article 370.
Permitting Corruption: Unlike the rest of India, Jammu and Kashmir does not has institutions like CBI, CAG or Lokpal to investigate the corruption issues in the state because under the provisions of article 370, these anti-corruption bodies were not allowed to work in the state. This was a bone of contention as Kashmir is not totally free from corruption.

President’s Notification of 2019

On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha that the President of India had issued The Constitution (Application to Jammu and Kashmir) Order, 2019 under Article 370, superseding The Constitution (Application to Jammu and Kashmir) Order, 1954. The order stated that all the provisions of the Indian Constitution apply to Jammu and Kashmir. Whereas the 1954 order specified that only some articles of the Indian constitution to apply to the state, the new order removed all such restrictions. This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated. The order was stated to have been issued with the “concurrence of the Government of State of Jammu and Kashmir” which apparently meant the Governor appointed by the Union Government.

The Presidential Order 2019 also added clause (4) with four sub-clauses to Article 367 under “interpretations”. The phrase “Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers” shall be construed as the “Governor of Jammu and Kashmir”. The phrase “State government” shall include the Governor. In proviso to clause (3) of article 370 of the Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”. Some of the Presidential orders under Article 370 have been issued since 1954 in similar circumstances when the state was under President’s rule. The Union governments interpreted the “concurrence of the state government” under these circumstances to mean the Governor.

Immediately after placing the Presidential Order 2019 before the Rajya Sabha, Home Minister Amit Shah moved a resolution recommending that the President issue an order under article 370(3) rendering all clauses of Article 370 inoperative. After the resolution was adopted by both houses of the parliament, the President issued Constitutional Order 273 on 6 August 2019 replacing the remaining text of Article 370 with the following text:

All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.

Impact of Notification

POLITICAL IMPACT:

Direct control: The Jammu and Kashmir Reorganisation Act 2019 proposes to bifurcate the state into 2 UTs- Jammu and Kashmir and Ladakh. The bifurcation will give direct and more control over administrative and legislative functions to New Delhi. It also gives immediate command over the police and protection and maintenance of public order in the region. Now, this will give the ruling party-BJP- a political advantage to further emphasize the issue as an internal matter to avoid third-party mediation or involvement.
Domestic political advantage: Firstly, this decision comes at a time when BJP knows the fact that there is a weak and disunited political opposition as it was very much evident by the fact that several opposition parties supported the move. Secondly, BJP sees an opportunity to form government in the UT. The new constituencies map can be of some luck for the BJP because if BJP is able to win more seats in Jammu constituency then there is a fair chance of BJP appointing its member as the CM.
Effect on Indo-Pak relations: The move of revocation was termed ‘illegal’ and ‘unilateral’ by Pakistan Foreign Office. The already fragile relations between the two countries suffered further. After a series of events, the National Security Committee of Pakistan decided to downgrade Pakistan’s relations with India. The Samjhauta Express and the Thar Express were suspended. On the cultural front screening of Indian films and dramas inside Pakistan were banned. With the scrapping of the special status of J&K, New Delhi is likely to seek a change in the narrative around the Kashmir issue, altering the position it has maintained since the 1972 Shimla Agreement that India and Pakistan should discuss their disputes bilaterally. The Kashmir dispute may now become a “strictly internal matter” of India rather than a bilateral issue to be discussed with Pakistan as the second party. It is possible that the Modi government may now focus on formalizing the Line of Control and International Boundary, which Pakistan refers to as the Working Boundary, in an effort to render the current division of territory in Kashmir non-negotiable. India’s Defense Minister Rajnath Singh’s recent comments suggested this shift is taking place when he said that any future talks with Pakistan will be on Pakistan-administered Kashmir only. This apparent change in India’s narrative may call for strong responses from Pakistan.
Fear among other regions: After the revocation of the special status of J&K, several other regions in the north eastern part of the country feared that the same might happen with them. The continuance of special status of these regions is essential for maintaining the diversity and ecology of these regions. The tribal areas in these regions felt that their existence, rites and traditions might get threatened by the intrusion of the mainstream society. But as was pointed out by the Home Minister Amit Shah that there is no such intention or talks to abrogate the special status of these regions and will never be.

ADMINISTARTIVE IMPACT

Jammu and Kashmir Reoragnisation Bill 2019: On 5 August 2019, the Home Minister Amit Shah introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha to convert Jammu and Kashmir’s status of a state to two separate union territories, namely Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to have a legislature under the bill whereas the union territory of Ladakh is proposed to not have one. By the end of the day, the bill was passed by Rajya Sabha with 125 votes in its favour and 61 against (67%). The next day, the bill was passed by the Lok Sabha with 370 votes in its favour and 70 against it (84%). The bill became an Act after it was signed by the President.
The two Union Territories came into existent on 31^st October 2019, the same very day the new map of India was also unveiled.

ECONOMIC IMPACT

Tourism suffered: As per The Hindu, Jammu and Kashmir tourism suffered to a great extent. Tourism, which forms 8-10% of the GDP of the state, was in shambles during the lockdown or say government clampdown. Less than 50,000 tourists visited the UT from August to December 2019 as compared to less than 2 lakhs in the same period in 2017.
Economy shock: In the 120 days after August 5, 2019. 10 districts of Kashmir suffered a loss of around ₹ 17,878.18 cr. According to Kashmir Chamber of Commerce and Industry.
Internet snapped: The internet services were snapped in the region in order to maintain law and order. These were only recently restored after the orders from the Hon’ble Supreme Court. The Supreme Court pointed out that freedom to access to internet services is a fundamental right and comes under article 19(1).
Unemployment rates: The CMIE (Centre for Monitoring Indian Economy) pointed out that the unemployment rate (UR) breached the 20% mark in the state in August 2019 after staying below the figures for 30 months. As a consequence a state of joblessness came in.

Domestic and International Reactions

INDIA’S REACTION:

Opposition Parties

The historian Ramchandra Guha said that the President of India had apparently acted in “haste” and the revocation is an “arbitrary misuse of state power”.
The leaders of Indian National Congress were divided on the revocation. Chief Minister of PunjabAmarinder Singh, a congress leader also termed the revocation of Article 370 as “totally unconstitutional” and said “this will set a bad precedent as it would mean that the Centre could reorganise any state in the country by simply imposing President’s rule.”
Rahul Gandhi called the arrest of Kashmiri political leaders as “unconstitutional and undemocratic”.
Hundreds of people protested in Delhi against the decision of the Government and asked the Government to reconsider its decision. D.Raja, the secretary of the Communist Party of India, called the Indian government’s move as “an assault on Indian Constitution.”
Support:
The Indian Government justified its actions by stating that this move will help in reducing violence and militancy in the state. Also it will enable the residents of the state for various other schemes like reservation and give them right to information.
Some senior Congress leaders openly came in support of the revocation like Dr. Manmohan Singh said that the revocation had an in-principle support from the party but its implementation was not right.
Jamiat Ulema –e-Hind, a prominent Indian Muslim organisation, supported the decision to abrogate Article 370 saying that the integration of Kashmir with India is in the interest of Kashmiri people.

INTERNATIONAL REACTIONS

Pakistan’s Reaction

Pakistan responded to the revocation in various ways. It termed the revocations as an “illegal and unilateral step”. Pakistan’s Army Chief said that the Pakistan Army would “go to any extent” to provide their support to the people of Kashmir.
Its reaction also came in the form of cultural or entertainment bans, which implies that screening of Indian films and dramas was banned.
It also announced that it would take the dispute to International Court of Justice on grounds of alleged human rights violation by India.

China’s Reaction

Foreign Ministry spokeswoman opposed the integration of the Ladakh Union Territory into India’s administrative jurisdiction, saying “it undermined China’s territorial sovereignty” she went on to say: “India’s action is unacceptable and would not have any legal effect,” regarding disputed territory on the China–India border.
Further, Chinese Foreign Minister, Wang Yi after meeting the Pakistani Foreign Minister, Shah Mehmood Quershi said that China will continue to firmly support the Pakistan side in safeguarding its legit right.

USA’s Reaction:

Morgan Ortagus, a US State Department spokesperson stated that there had been no change in the US position with Kashmir continuing to be regarded as a disputed region despite India’s characterisation of it as an “internal matter” and stressed the need for bilateral talks between India and Pakistan.
The US policy has been that Kashmir is a bilateral issue between India and Pakistan and it is up to the two countries to decide on the pace and scope of the talks on the issue.
US President Donald Trumpspoke to both Indian and Pakistani Prime Ministers. He emphasised the need to reduce tensions and moderate rhetoric while speaking to the Pakistani PM, after speaking to the Indian PM.

Conclusion

There are well built arguments both in favour and against the revocation of the Article 370. Some believe that this might threaten the very ‘unity in diversity’ character of the Indian Constitution but others think that it was a stumbling block in full integration of the state with the Union. It is very clear that Jammu and Kashmir will now have ample of economic opportunities and women of J&K will be free to choose the partner to marry with. In the long term interests of the state and the Indian Republic, the complete unification of the state with the Republic was necessary.

This Article is authored by:- Bhoomika ( MCMDAV-36, Chd.)