Jammu & Kashmir, Article 370 and the aftermath

The Union government has scrapped the special status of Jammu and Kashmir by modifying Article 370 of the Indian constitution and bifurcated the state into two Union Territories: Jammu and Kashmir with a legislature (like Delhi and Puducherry) and Ladakh without legislature (like Chandigarh).

Union Home Minister Amit Shah responds to the debate in the Lok Sabha to revoke Article 370 in Lok Sabha on Tuesday. (ANI Photo)

In practice, this means that Jammu and Kashmir won’t have its own constitution anymore, there will be no separate flag for the erstwhile state, its own laws will be nullified and laws passed in the Indian Parliament will be applicable, people outside the erstwhile state can buy property and invest in the region, among other things.

These are changes in the rules. What that means for politics of the region is a matter of debate: Will it lead to further isolation and alienation of locals? Will it lead to increased unrest in the valley? Will it lead to “emotional integration”, as BJP general secretary Ram Madhav put it, of the region with India? Will it lead to better economic prospects for the citizens? We can only speculate at the moment.

Anyone who found this “unexpected” or “surprising” is merely being ignorant about history: along with introducing Uniform Civil Code in India and building a Ram Temple in Ayodhya, revoking Article 370 had been one of the core planks of BJP’s cultural nationalist idea of India. The RSS, the ideological parent of the BJP, had opposed Article 370 since the 1950s. The Bharatiya Janata Party (BJP) promised to let go of Article 370 in its election manifesto. It delivered.

Let’s unpack what happened.


Background

How Kashmir became part of India, a simplified version:

In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as the prime minister. The interim government was also tasked with convening a constituent assembly for framing a constitution for the state.

In the meantime, the Constituent Assembly of India was conducting its deliberations. In July 1949, Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370. This article limited the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession.

If the Union government wanted to extend other provisions of the Indian Constitution, it would have to issue a Presidential Order under Article 370. The state government would have to give prior concurrence to this order. Moreover, the constituent assembly of J&K would have to accept these provisions and incorporate them in the state’s constitution.

Once Kashmir’s constitution was framed, there could be no further extension of the Union’s legislative power to the state. This secured J&K’s autonomy. (The Print)

So that’s how Jammu and Kashmir was integrated in the Indian Union.

What is Article 370: It’s a carefully drafted legislation to ensure J&K is integrated on the basis of conditions it acceded to the Indian Union. It provided special status to Jammu and Kashmir: it restricted the role of Centre in the state’s affairs and allowed the state to have its own constitution and flag. Apart from three areas—foreign affairs, defence and communications—the state would draft its own laws.

However, Home Minister Amit Shah argued otherwise: he argued that Article 370 did not attach J&K to India—it was not a precursor to Kashmir acceding to Indian territory. The Instrument of Accession was signed in 1947, Shah said, while Article 370 included in 1949.

What is Article 35A: Adopted in 1954, it gave the state the power to define “permanent residents”—meaning people who can vote, hold public office, purchase property and settle in the state, get the benefit of scholarships, among other things.

Both the articles aimed to provide autonomy to J&K. The debate centers around about the implications of this autonomy.


The debate on Article 370

Arguments against Article 370 and special status for J&K:

Arguments in favour of Article 370:

The special status guaranteed to Jammu and Kashmir was not a partisan or personal decision of the founding fathers of the Indian republic. It was based in the imperative of nation-building. It was a recognition of the role a Muslim majority state — its unique demography protected by the Constitution — would play in belying the claims on which Partition had taken place, and in strengthening the secular “idea of India”.

Yesterday, the first view prevailed and sailed through, a reflection of BJP’s increasing political clout in India.


Questions that matter

The events that led to this change also raise critical questions about Prime Minister Narendra Modi’s “New India”. Here are six things I am thinking about.

First, the diminishing value of public consultation

There are valid reasons for and against this move. The issue should have been adequately debated on the floor of the Parliament.

Instead, here is what happened: Rajya Sabha MPs were given less than an hour and a half to interpret legal jargon running across 57 pages and file amendments. Then the MPs were given around four hours to discuss the bill in the Parliament before voting.

Even if you are very sure of what you think is the right move, for a bill that is reorganising a state, concerns the future of a conflict-ridden state with geopolitical implications, is it a big ask to discuss before putting it into action?

Who’s missing: While most of the TV channels and netizens erupted with joy, one voice was starkly missing, the ones who will have to live with the implications of the decision: people of Jammu and Kashmir. The region is witnessing the worst communication blackout in a decade: no internet, no phone connection, and hence there are no reports from the valley.

Why such a hurry? If there were genuine reasons for a hasty process–national security, as usual, will be the most likely explanation–the public was not informed. Why? (More on this later)

Second, the legality of the process

It is not clear whether the process that the Centre followed was legal or constitutional.

Here is how the BJP pulled it off:

  1. Article 370 allows the President of India to change Article 370 but that requires the recommendation of “Constituent Assembly of Jammu and Kashmir”. But the constituent assembly was dissolved in 1957.

  2. So the government inserted a new provision in Article 367 of the Constitution that declares that “the expression ‘Constituent Assembly of the State…’ shall read ‘Legislative Assembly of the State’”—meaning recommendation of the state legislature was required.

  3. Now, given that J&K had no state legislature—it is currently under President’s rule—the President required approval of the governor, who is appointed by the Center.

Effectively, no approval was required.

Did the Union government legally exploited a loophole or illegally followed an unconstitutional process? Does the Governor enjoy the power to take such decisions in the absence of state legislatures? It is not clear.

However, as one lawyer argued, the government breached the spirit of the law: the idea to get approval from the constituent assembly meant local stakeholders get a seat on the table in deciding their fate. And that did not happen.

The process the government followed is questionable. Do the ends justify the means?

Read Madhav Khosla’s fine piece on the legal implications and constitutional questions that arise from the end of Jammu and Kashmir as a state.

Third, what about Modi’s Sabka Vishwaas motto?

The monumental changes were introduced stealthily and secretively: overnight detention of mainstream politicians, complete communications shutdown in the state (mobile internet services, cellular network, landline/broadband connection, cable TV, everything was blocked), increased deployment of military personnel (around one lakh personnel are deployed in the valley right now).

Unless you take the hardline view and mistakenly equate every dissident in the valley as a terror sympathiser and Pakistani agent, it should be clear that the process was unjust. The stakeholders should have been a part of the consultative process.

“Sabka Saath, Sabka Vikaas, Sabka Vishwaas”, huh? The last bit is merely a slogan.

Fourth, what will happen next?

At this point, we can only speculate what’s coming next.

Here are possible scenarios:

A Business Standard editorial argued that is flawed reasoning:

“The lack of development is the product of chronic unrest, which has had less to do with the special status of its citizenry than the fact that it remains disputed territory, with Pakistan building its national purpose around fanning the flames of the separatists and terrorists”

Fifth, what about government accountability?

Were the decisions taken in response to external threats (fears of US withdrawing troops from Afghanistan, Pakistan BAT attacks) as the government had hinted over the last week, or was it only about domestic politics?

The turn of events suggest that domestic politics was the trigger behind every move of the government: increased security deployment (around one lakh personnel are deployed in the valley right now), calling back tourists from the state, cancellation of the Amarnath yatra, the shutdown of NIT Srinagar and evacuation of hostels—all were, as we now know, steps to prepare for the expected backlash in the valley following the removal of the special status. The government knew that the decision would not be popular in the valley.

The government owes an explanation of why external threats were emphasised in the runup to these decisions. The question of “how much information the government should reveal” appears in every contentious debate: air strikes, demonetisation, and others.

It appears that the public at large is okay to not have those answers.

Sixth, the implications for India’s federal structure

What we learnt in this incident is that by invoking President’s rule—meaning without the presence of a democratically elected state government—the Central government can demote a state to a Union Territory. UTs are directly administered by the Central government. In UTs with legislature, the Lieutenant Governor appointed by the Center works in consultation of the elected government.

The fact that a Central government can dismember a State without prior consultations is a red flag for India’s federal structure. Should the Central government even enjoy such power? It is J&K today, can it be West Bengal tomorrow?

Time will tell whether these actions will lead to a new beginning or the beginning of an end. I hope it’s the former.