This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed in detail the grant of special status to Jammu and Kashmir and the circumstances which made it necessary to make such special provisions and furthermore the aftermath and developments which evolved following the autonomy being given to the state of Jammu and Kashmir.

Historical Background

It was the treaty of Amritsar signed between the British government and  Maharaja Gulab Singh on March 16, 1846, which formulated Jammu and Kashmir into a single political and geographic entity. The newly formed state mainly comprised of three districts – Jammu, Kashmir, and Ladakh. While India saw development in the fight for independence from the British rule, a similar uproar was found in Kashmir to fight against autocracy under the leadership of Sher-i-Kashmir Sheikh Mohammad Abdullah. Consequently, the autocratic rule came down heavily on the people’s freedom movement.

The movement gained ground and momentum when 22 protesters were martyred on July 13, 1931. Further, the National Conference headed by Mohammad Abdullah emerged as a mass movement and was backed by the strong will of people to fight against autocracy. The National Conference headed by people’s movement further witnessed several ups and downs followed by changes in circumstances and fortunes in the leadership of Mohammad Abdullah.

Instrument of Accession

When India attained independence on 15 August 1947, Jammu and Kashmir was one of the 565 princely states of India. While Independence was being granted to India, there was an option handed over to the rulers of princely states, which was they had the discretion either to join one of the two dominions – India or Pakistan or remain as an independent state.

The then ruler of Jammu and Kashmir, Maharaja Hari Singh, did not exercise the option of parting either with India or Pakistan and instead sent a proposal for a Standstill Agreement with both the dominions of India and Pakistan. On the receival of the offer, Pakistan immediately accepted the proposal and communicated the same to the then Prime minister of Jammu and Kashmir. India on the other hand, refused to agree to the offer and instead, advised Maharaja Hari Singh to send representatives to Delhi in order to hold discussions on the said offer.

Developments followed by the Standstill Agreement

Though Pakistan entered into a standstill agreement with India, it still had an eye on Kashmir. The very founder of Pakistan, Mohammad Ali Jinnah, had by the logic of the majority Muslim population in Kashmir assumed that it would become a part of Pakistan. But the events which followed were contrary to this.

Eventually, Pakistan, in order to gain control over the land of Jammu and Kashmir, planned a tribal attack on Kashmir and gave it a green signal. Their prime motto was to drive out the Maharaja of Kashmir from his land. Simultaneously, the Poonch Uprising came into being, which liberated the ideology of “Azad kashmir”. The Poonch uprising was marked by the people of Kashmir revolting against the reign of Maharaja Hari Singh and demand for the secure future of the land of Kashmir.

Such developments further mounted pressure on Hari Singh to decide the course of action for the future of Kashmir. Maharaja Hari Singh, in order to bring the situation under control in the state of Jammu and Kashmir, sought the help of India. Bowing before the demands of the people of Kashmir and to push back the invaders from his land, Hari Singh signed the Instrument of Accession in favour of India on October 26, 1947. The Instrument of Accession which was signed by Hari Singh was the same as that signed by the rulers of other Princely States.

Once Jammu and Kashmir became the legal and constitutional part of India by the way of Instrument of Accession, Indian troops were sent to push back the invaders and vacate the territory from aggression. Immediately after the signing of the Instrument of Accession, an Emergency Government was formed in the state of Kashmir on October 30 1947 with Sheikh Mohammad Abdullah as its head. The army fought the battle and after sustaining numerous sacrifices, was finally successful in driving out the invaders from the territory of Kashmir.

Role of the United Nations in Kashmir Dispute

On January 1, 1948, India took up the issue of Jammu and Kashmir to the United Nations under article 35 of its charter. On the international forum, Pakistan was accused of providing aid to the tribal infiltration in the territory of Kashmir. But all the charges were denied by Pakistan and them, in turn, accused India of annexing the territory of Kashmir and in addition to it destabilizing Pakistan in its infancy.

After hearing the representatives of both India and Pakistan, the UN Security Council opened the debate on the Kashmir issue on 7th January 1948. In order to put an end to the growing tensions between India and Pakistan, the UN Security Council passed a resolution – Resolution 38 to calling both India and Pakistan to a ceasefire and refrain from the aggravating situation.

But Pakistan raised several legalistic and ancillary issues regarding its stance on the issue of Kashmir, and the annexation of India in the issue of Kashmir. The UN in order to resolve this matter and put a final end to the Kashmir dispute passed another resolution on  21st April 1948, which made a final call for the end of hostilities between India and Pakistan and further withdrawal of all Pakistani troops and tribesmen and bulk of Indian soldiers from the land of Kashmir.

Prominent features of Accession

Though the agreement was meant to be temporary, it went on to provide and also maintain a special status to Jammu and Kashmir, and the main features of the same are listed as under:

1. Under the said agreement the state surrendered defence, communication and external affairs.
2. The Instrument of Accession would govern the relationship of state of Jammu and Kashmir with the dominion of India.
3. The state was provided with the autonomy to draft its own Constitution by the way of the separate constituent assembly.
4. In the original constitution (1950) the state of Jammu and Kashmir was constituted in part B category.
5. Laws regarding the union and concurrent List will be made by the centre only with the prior consent of the state of Jammu and Kashmir.
6. Article 370 was incorporated in the Indian Constitution in order to give effect and accommodate the above provisions.

Article 370 of the Indian Constitution

Article 370 of the Indian Constitution enshrines the following modifications in favour of the state of Jammu and Kashmir:

1. Article 370 provides for a Separate Constitution for the state of Jammu and Kashmir.
2. The name, territory or boundary of the state of Jammu and Kashmir cannot be changed without the prior permission of the state legislature.
3. Part VI of the Indian Constitution which deals with the state government is not applicable to the state of Jammu and Kashmir.
4. Special rights are granted to the permanent residents of the state with respect to public employment, settlement and government scholarship and acquisition of immovable property.
5. Directive principles of State policy and Fundamental Duties are not applicable to the state of Jammu and Kashmir.
6. Financial Emergency cannot be imposed in the state of Jammu and Kashmir.
7. High courts of Jammu and Kashmir do not have the authority to issue writs in matters other than Fundamental Rights.
8. National Emergency which would be imposed on the grounds internal disturbance would have an effect on the state of Jammu and Kashmir, except with the concurrence of the state government.
9. The provisions of official language are applicable only in so far as they relate to the official language of the Union.
10. Fifth Schedule and Sixth Schedule of the Indian Constitution are not applicable to the state of Jammu and Kashmir.
11. President rule can be applied to the state of Jammu and Kashmir only on the ground of failure of constitutional machinery of the state constitution and not of the Indian constitution.
12. Residuary power belongs to the state, except in prevention of activities involving terrorist acts, questioning and disrupting the sovereignty and territorial integrity of India and causing insult to the national flag, national anthem and the constitution of India.

Autonomy to the state of Jammu and Kashmir under Article 370

The article 370 of Indian constitution assures a very special status to the state of Jammu and Kashmir, and this status is granted to J&K in consideration with the circumstances under which the princely state entered into the instrument of accession. The constitution of India placed several restrictions on the powers of the central government with regard to that of the state of Jammu and Kashmir.

However, over the recent years, there has been a series of undemocratic practices and measures coming to light which have indeed lead to the erosion of vital rights and powers which were conferred by the article 370 on the state of Jammu and Kashmir. Recent examples which have caused the erosion of rights of Jammu and Kashmir can be quoted as those manifestos and measures put forth by the various parties of the Indian sub-continent which will be discussed in detail in the following segment of this article.

Current Status of Article 370 under the Indian Constitution

There have been various changes and developments brought in the arena of Article 370 over the recent years, and the same will be discussed under different segments of this article

What is Article 370

The very creation of article 370 was made with the view that its existence would be temporary. The signing of the instrument of accession by the ruler of Kashmir was with regard to surrender of only three subjects – External Affairs, Communication and Defence, the surrender was made by the state of Jammu and Kashmir to the dominion of India. Hence, it can be said that the relation which exists between India and the state of Jammu and Kashmir is of exceptional nature and one marked with historical importance.

It can be said that there is power vested on the Union of India to act on the issue independently only if it is by any way related to the three subjects surrendered by the ruler of Jammu and Kashmir or it can either be one of them mentioned in the Instrument of Accession.

 Abrogation of Article 370- For and Against

The abrogation of article 370 is a highly discussed and debatable matter, one can conclude that the arguments for and against the abrogation of the article stand equally balanced.

Arguments favouring the abrogation of article 370

• The prime aspect to be taken into consideration here is that the word “temporary” was attached and this further makes it the only article incorporated for a limited period of time in the Indian constitution.
• The existence of article 370 makes Jammu and Kashmir have its own constitution, and this is not rendering full protection of Fundamental Rights and also there is no mention of minorities. In addition to all this, there exists wide discrimination in terms of gender rights and an example to support this point would be that of property rights- here women are denied equal rights to the property. Moreover, if a woman marries non-resident Kashmiri, then she is denied her rights to the entitlement of property in the in state of Jammu and Kashmir.
• There are instances of many more such demeaning and disastrous rights which exists because of article 370 and this, in turn, undermines the rights of Indians because of the Kashmir Constitution.  
• The former Congress home minister JL Nadda had defined article 370 as “tunnel in power”, the presupposition which existed here was that as and how the state of Jammu and Kashmir would become like any other state, the centre’s power on the state would increase. But, contrary to this, over the passage of time, the desired results did not show up.
• A number of critics even contend that the argument which states that abrogation of article 370 would lead to Jammu and Kashmir no longer being a part of India is baseless and also raises misinformation and creates confusion among the people.
• In the case of Sampat Prakash v.State of Jammu and Kashmir, it was held by the court that the centre should be given more power. In addition to this, there should be wide meaning given to the word “Modification” which is used in article 370(1). This goes on the showcase the robust and unfettered power which the centre has in terms of governance of the state of Jammu and Kashmir.
• Critics even argue that as a nation on cannot allow the separatists demand to persist and it is the right time to bring an end to any such a provision.

Arguments opposing the abrogation of article 370

• The repealing of article 370 has been a poll promise of the BJP government. BJP has been a party which is opposing the continuation of granting of special status to the territory of Jammu and Kashmir.
• The critics argue that revoking the article 370 from the Indian Constitution would actually mean the destruction of the constitutional bridge between India and the state of Jammu and Kashmir.
• Analyzing the consequences of severing Jammu and Kashmir from the territory of India, one would conclude that it would lead to communal clashes and would also give rise to jeopardy to the relationship which exists between Indian and Jammu and Kashmir.
• The contentions put forth by Mehbooba Mufti were that the entire region of Jammu and Kashmir would be threatened if the government goes ahead with the repealing of the article 370. She had further laid down that there was a glimpse of the existence of  ‘heap of explosives’ in the region of J&K and this was found out in the wake of the recent Pulwama attacks.
• Amongst the three wars that have been fought between India and Pakistan, two of them were for the reason of state of Jammu and Kashmir, which were in the year 1947 and 1999. Bringing up the issue of Jammu and Kashmir again to light would lead to more such developments.
• The entire question of the scrapping of article 370 is an extremely sensitive and controversial and hence there is a grave need to handle the matter in a meticulous and mature way.

Whether abrogation can be given effect or not?

There exists a provision for the abrogation of article 370 which is being made by the way of an amendment. This provision for the abrogation of the article has been contemplated under article-368 of the Indian Constitution. The only requirement for this provision to be brought into effect is that such an abrogation of the article 370 should be effected in a non-destructive nature with regard to the basic structure of the constitution.

Now the question which should be taken into consideration is not that of how the abrogation can be affected but whether the abrogation can be made at all and the answer to this question is not positive. On a deeper analysis of the provision of article 368, on would come to know that although the president of India exercises the power to modify or suspend the article 370 of the Indian Constitution but the same can be done only with the recommendation of the constituent assembly of Jammu and Kashmir. Hence, it can be said that the absolute power with regard to article 370, the Union of India and the state assembly of Jammu and Kashmir rests with the state government of Jammu and Kashmir.

The disagreement between the union of India and Jammu and Kashmir regarding article 370 is indispensable and this would result in an endless existence of article 370.

Would the abrogation result in Jammu and Kashmir’s freedom from India?

The contention that the abrogation of article 370 would lead to freedom of Kashmir from the dominion of India has been laid down by politicians like Farooq Abdullah. Looking at the ground reality of the state it can be put forth that. There exists a belief amongst the Kashmiris that scrapping of 370 would change the demography of their region and the same has been instilled in their minds by the political parties. The state of Jammu and Kashmir has been divided into three major parts that are Jammu, Ladakh and Kashmir.

The residents of Ladakh and Kashmir do not express much of objection to the repealing of article 370, and in fact, Ladakh wants to become a union territory. The only objection is from the residents of Kashmir which comprise of a majority of the Muslim population, because of this development there can be no effect given to scraping of the article only in the regions of Ladakh and Jammu excluding the valley.

Pakistan’s stance on abrogation of article 370

Pakistan has stated that it cannot accept the abrogation of article 370 and in support of its point it lays down that the abrogation of article 370 would be in violation of UN resolution. Article 370 being a temporary provision curtails the powers of the Indian constitution with regard to making of laws for the state of Jammu and Kashmir. Pakistan had even given out the statement that it would not accept the scrapping of article 370 in any circumstances and even added that the people of Kashmir would also not accept the same.

While, addressing a press conference, the then chief minister of Jammu and Kashmir Omar Abdullah had stated that, when the country got its independence, there were certain provisions in the Indian Constitution which were kept for the sake of safeguarding the interests of Jammu and Kashmir and the same cannot be revoked by the Indian Constitution in the present day.

What is article 35A?

Article 35A is the provision was incorporated in the state of Jammu and Kashmir in order to decide who all are the persons who would be called the ‘permanent residents’ of the state. The people who come under the ambit of permanent residents are conferred with privileges and special rights on their part. These privileges apply to them in various different aspects like that of acquisition of property in the state, government jobs, public sector jobs, scholarships in education and also public welfare and public aid.

How did Article 35A come into being?

It was in 1954 that article 35 was brought into effect in the Indian Constitution. It was on the advice of the then Jawaharlal Nehru cabinet that, the then president Rajendra Prasad incorporated Article 35 into the Indian Constitution. There was an order passed in 1954 and followed by this there was the Delhi agreement in the year 1952 which was entered into between Jawaharlal Nehru and the  Prime Minister of Jammu and Kashmir Sheikh Abdullah. This provision was the one which extended the citizenship status to the people of Jammu and Kashmir, making them the state subjects.

Hence, it can be finally said that the prime purpose behind the addition of the article 35A to the Indian Constitution as a testimony of special consideration of Indian government for the grant of permanent residence of Jammu and Kashmir.

Importance of article 35A

A petition filed by an NGO- We The Citizens has been underway in the Supreme Court. The petition was filed for the abrogation of both article 370 and 35A and the reason for this is laid down as the article 35A was against the spirit of the constitution and that it further creates a class within the class of the Indian Constitution.

This particular issue is not only that of a political thing but people also expressed their concerns related to the demography of the region of Jammu and Kashmir. The people here fear that the mass migration which would take place if people leave the valley following the abrogation of article 370, it would not only affect the demography of the Kashmir valley but also the communal environment there.

Why does article 35A matter?

The first question to be taken into consideration here is whether article 35A is void because it was not placed for discussion before the parliament before being passed. In March 1961, a five-judge Supreme Court bench was deciding on the case of Puranlal Lakhanpal v. The President of India. In this case the court while discussing if the president has the power to modify the constitution, held that the President thus has the power to modify any existing provisions of article 370, but at the same time, the court was silent on the question of whether such a decision can be taken by the president without the consideration of the parliament. Also, the question of whether the president can introduce a new article without the knowledge of the parliament remains an open question.  

Stance of Political Parties on article-35A

In addition to their poll promise of repealing of article 370, the BJP also promised the repealing of article 35A and ensure the return of Kashmiri Pandits who were forced to leave the valley due to the outburst of terror attacks in the valley. Article 35A of Indian Constitution prohibits non-residents from buying a property or seek government jobs or from availing any other privilege in the disputed territory. With the Modi government backing the move to scrape down article 35A, the Hurriyat leaders have warned that any changes in the current status of article 35A would result in dangerous consequences.

Pakistan, on the other hand, is a legitimate party to the Kashmir dispute has also condemned the attempts of the Indian Government to repeal the article 35A. Pakistan further stated that any such attempts aimed by the Indian government would be clearly aimed at bringing demographic changes in India occupied Kashmir.

Conclusion

The issue of grant of special status to Jammu and Kashmir has been marked by historical importance. Hence, carrying forth the status in accordance with the treaty agreed upon becomes a significant step and the furthermore, thinking on the flip side of it, the fact that the provision was made for a temporary period of time, and hence, now is the right time to repeal the article plays a balanced emphasis on this matter, same is expected to be followed in order to maintain peace and tranquillity in the disputed region of Jammu and Kashmir..

The government is required to take special care and caution while dealing with or making any laws or changes regarding the state of Jammu and Kashmir as it has evolved as a highly disputed region in the wake of difference which arose between India and Pakistan in the recent times. Hence, it can be finally said that if the laws regarding Jammu and Kashmir are met with, in a meticulous way, it would prove to be helpful to the Indian state in the long run.