This article has been written by Namrata Kandankovi, a student of Symbiosis Law School, Pune.

Abstract

This essay tries to include under its ambit, numerous timeline of facts surrounding the abrogation of Article 370 and also analyses the individual issues pertaining to the abrogation and further gives out an edifice to the readers while intriguing their thoughts and understanding regarding the issue of Article 370. Right from the inception of the state of J&K to granting its special status to the revocation of the same, there has been a chain of events provided with regard to the fallout of occurrences and the steps taken by the government with regard to Article 370 has been discussed in the following essay. It drags the attention of the readers towards both pros and cons of the abrogation of Article 370 of Indian Constitution. 

Genesis of Special Status to Kashmir

Historical background of Jammu and Kashmir during independence

The formulation of Jammu and Kashmir as a single political and geographic entity dates back to the year of 16th March 1846 when the Amritsar treaty was signed between British government and Maharaja Gulab Singh. After the formation of the state, the significant parts which it comprised were Jammu, Kashmir and Ladakh. It was at this time that there was an uproar seen in India with regard to attainment of Independence from the British rule. Simultaneously, upheaval of similar fashion was found in the Jammu and Kashmir region where the people voiced their opinions against the autocratic rule, and they were headed by Sheikh Mohammad Abdulla. This mass movement had to go through several ups and downs throughout its course because of the widespread developments taking place in Kashmir during that time. 

At the time when India attained its independence, there existed a scenario where Indian sub-continent had 564 princely states, most of these princely states agreed to merge with the Indian territory, while certain others, The Nizam of Hyderabad, Nawab of Junagad and Hari Singh of Kashmir did not agree to merge with India regardless of numerous efforts made by Vallabhai Patel for the same. At this point in time, the accession of Jammu and Kashmir to India was seen as one of the most substantial happenings. The forthcomings regarding this event will unfold in the upcoming section of the essay.

Instrument of Accession

After the colonial rule of the British was brought to an end, the country was divided into two parts, that is- India and Pakistan. Now, the princely states which existed in the Indian sub-continent had an option of either parting with India or Pakistan. Considering the aspect of Kashmir, there were several speculations put forth regarding the same. Mohammad Ali Jinnah was quite assertive about Kashmir parting with Pakistan, and he supported his assertion with the logical reasoning of majority of the population in Kashmir being Muslims, it would be ideal for the state to part with Pakistan. But to the contrary, there were proposals of Standstill Agreement sent to both India and Pakistan, which indicated that Kashmir had no intention of parting with either country.

Aftermath of the Standstill Agreement

The events which unfolded in Kashmir after the signing of the Standstill Agreement with Pakistan where the matter of concern as there was a tribal revolt which broke out in Kashmir. The revolt was planned by Pakistan and an assent was given to the same in order to gain control over the territory of Jammu and Kashmir. The main objective behind the revolt was to oust Hari Singh from Kashmir. Simultaneously, the Poonch Uprising surfaced in Kashmir, which was basically the people of Kashmir rebelling against the rule of Hari Singh, and they further demanded a safe and secure future for the people in Kashmir.

Following the outburst of all such developments, there was pressure mounted on Hari Singh to protect Kashmir and its people and arrive at a final call regarding the future of Kashmir. In order to overcome the tribal revolt and resolve the problems, Hari Singh sought the help of India. In response to this India put forth the condition for Hari Singh to sign the Instrument of Accession in order to avail India’s help. It was on October 26th 1947, that the Instrument of Accession was signed by Hari Singh, following which Jammu and Kashmir became a constitutional and legal part of India, with certain special provisions like that of having its own constitution, which has been discussed under. 

Article 370– This article provides Special Status to J&K, which are- Special rights have been conferred to residents of the state with regard to public employment, acquisition of immovable property and scholarship etc. Directive Principles of State Policy and Fundamental Rights are not applicable to J&K. Fifth and Sixth Schedule of Indian Constitution are not applicable to J&K. Financial emergency cannot be imposed in the state. Financial Emergency cannot be imposed in J&K. President’s rule can be made applicable only on failure of constitutional mechanism of the state and not otherwise. Part VI of Indian Constitution, which deals with State Governments not applicable to J&K. Provision of Official Language applicable only as long as it relates to the official language of the Union. Residuary power vests with the state, except in the cases of prevention of activities relating to terrorism, or when the issue is about questioning or disordering the sovereignty of India. National Emergency if imposed in India would have an effect on J&K except with the concurrence of the state. These are the major privileges given to the state of J&K under Article 370. 

Abrogation of Article 370

Was the Abrogation of Article 370 in line with the Constitution?

According to some of the Constitutional experts, the abrogation of Article 370 comes to be constitutional in nature. Firstly, because the provision was a temporary provision and not a permanent one, and hence, it has also been argued that Article 370 was neither a feature of the constitution and nor a basic structure and hence it was not something that is beyond amendment. Further, considering the various judgments delivered by the Supreme Court pertaining to the permanent aspect of Article 370, it should be understood that the judgments were restricted to the facts and circumstances of those particular cases and not as a whole in the context of it. 

Now considering the flip side of the same, there should be attention given to the way Article 370 was scrapped. Detention of the political leaders like that of Omar Abdullah and Mehbooba Mufti is termed as an alarming act. Preventive Detention is supposed to be used only when the government is satisfied that there exists threat to the public order by the political leaders and not otherwise. 

• Whether the Abrogation could be given effect at all? 

The very basic question which is to be answered here is, not how the abrogation is to be affected, but is there even a provision to effect the abrogation? According to Article 368, the President has been conferred with the power to either modify or suspend Article 370 but this power can be enforced only with the recommendation of the constituent assembly of the J&K Government. Since, the Constituent Assembly of J&K itself doesn’t exist; there arises a serious concern on whether the abrogation can ever be given effect. From the above mentioned points, it is clear that there exists no clarification on whether the abrogation of 370 can be effected or not. The absolute power with respect to Article 370 vests with the State Government and in the event of dissimilarity between the State and the Union Government, the issuance of abrogation becomes indispensible and the outcome which follows this is the endless existence of Article 370. 

• Abrogation of Article 370 and 35A: An Assault on the Constitution?

Looking back at the landmark case of Keshavanand Bharati v. State of Kerala it can be stated that, a constitutional bench containing 13 judges while delivering the judgment differentiated between making a simple amendment to the Constitution and rewriting a part of it. In this they held that the latter involves abrogating the basic structure of the Constitution. It was further held by the court that the power to amend the Constitution does not include the power to alter the basic structure of the same. Those who defend the scrapping of Article 370 as a Constitutional move would come up with various justifications, which would be mostly political in nature, but if the center fails to establish that the scrapping of Article 370 does not alter the basic structure of the Constitution, then this move of the center in abrogating Article 370 would be susceptible in many ways to be struck down by the apex court as an unconstitutional step. 

Shyama Prakash Mukherjee’s views

Shyama Prakash Mukherjee was the founder of Bharatiya Jana Sangh, which later formulated into BJP. The ideology put forth by Mukherjee was- The foundation of a democracy lies in the basic principles which requires for a single Constitution to be in place. But, on the contrary, India being a democracy had Indian Constitution and also the Constitution of Jammu and Kashmir, which goes against the basic principles of Democracy. Mukherjee had put forth grave questions which were- Why J&K was kept outside the ambit of the President’s jurisdiction? And why the Congress agreed to a special permit to enter Jammu and Kashmir. Further, he also questioned why J&K has sarad-e-riyasat and not governors and why a prime minister instead of Chief Minister. He also coined the term “Ek Desh mein do vidhan, do Pradhan aur do Nishan nahi chalenge” (There cannot be two Constitutions, two Prime Ministers and two flags in one country) Thinking from democratic point of view, the arguments put in place by Mukherjee tend to have a say to a certain extend in terms of existence of Article 370. 

Need for Plebiscite?

The very issue of holding a Plebiscite came to light, when the renowned actor-turned politician Kamal Hassan stir up the controversy by asking the Indian government, why it was afraid of holding a Plebiscite (A referendum) in the Kashmir valley, after 40 CRPF soldiers were martyred during the Pulwama attacks. In his opinion, Kamal Hassan proposed the fact that it should be left to the people of Kashmir to decide whether they want to live in India or become either an independent state or part with Pakistan. Considering what the political parties want, it can be said that, both People’s Democratic Party (PDP) and National Conference (NC) wanted the restoration of the position which Kashmir enjoyed pre-1953. The PDP termed this as a self-rule while the NC termed it as autonomy of the state. While the separatists express a different view-point regarding this as they demanded that the fate of Kashmir should be left to be decided by the people themselves as promised during the time of accession. The separatists again want the people of Kashmir to decide whether they want to part with India or Pakistan. 

Various political experts while putting forth their views on plebiscite have expressed that there exists no scope of Plebiscite in the near future, as both India and Pakistan had refrained from honoring their commitments back in the time, when the UN had asked them to retrieve their troops from the valley in order to resolve the matter. Hence, holding a Plebiscite in the valley seems to be a far cry.

Unfolding of events after the abrogation of Article 370 and 35A

Does it become a breeding ground for terrorism?

Considering the aspect of terrorism in Kashmir, it can be stated that Kashmir is a parasite which has subsisted on a number of killings. The feeling of hatred, suppression, animosity and alienation is something that evolves from the very history of violence which the valley has witnessed over the years; these factors add for the breeding of new terror recruits among the Kashmiri boys. Comparing the recent times to past years it can be said that there has been some relief seen in the current year; but following the abrogation of special status, and the political and the security developments which were issued in the valley, drags the attention of the world to the fact that Kashmir is on the verge of an unparalleled surge of violence. 

The violations of human rights seen in the valley in recent times and cutting it completely off from the rest of the world leads to radicalization in the youth, which may give rise to the budding of various terror organisations. The idea of nationalism is quite different to Kashmir when compared to the rest of India. Various fallen Kashmiris like that of Makbool Bhat to Afzal Guru and Buran Wani are projected as heroes, further the central government coming up with developments like that of violation of human rights adds up to all these factors in making the valley prone to terror activities. 

Developmental activities in the future

As a consequence of abrogation of Article 370 and 35A, J&K will now be treated like any other union territory in India. The rules and Regulations of center will be made applicable even here. Nevertheless, a RERA policy is necessary in order to make the policies and rules overtly clear. Considering the aspect of entering the market, it can be said that there still exist a lot of ambiguity in terms of making investments in Kashmir. With the growing trends of tier 2 and tier 3 towns in India and them becoming attractive destinations for various, there arises humongous potential for the Kashmir valley as it is regarded as the apt real estate destination.

In addition, its scenic value augments the developmental aspect. However, as the market in J&K is still inchoate, the valuations for the same are still not known. The statement given out by the Prime Minister and NDA government also focused on aspects like that of – Locals finally getting to see an increase in the value of their property and the market opening for investors outside J&K for investment in immovable property. In one of his addresses the Prime Minister even invited various investments in the valley including Bollywood to go ahead and invest in the valley. But looking at the current scenario, it is advisable for the investors to look for alternative ways to enter the market like that of joint development and joint ventures with the locals. As long as the lockdown in the valley persists, it beats the whole point of developmental activities emerging there. 

Jammu and Kashmir Re-organisation Act

President’s order – Colourable Exercise of Power?

It was through the Presidential order G.S.R 1223 (E) by which an amendment was made to Article 367 of the Indian Constitution, by the way of which the expression ‘Constituent Assembly of the state’ was changed to ‘Legislative Assembly of State’. The petition which was filed against the abrogation of Article 370 stated that, this amendment made to Article 367 was- Colourable Exercise of Power, which is a legal term which states- something which cannot be done directly can also not be done indirectly. But, in the case of J&K the abrogation was given effect through indirect means which couldn’t actually be done directly. Also the legislative assembly of the state does not exercise the power to modify the state’s association with India on the account of Section 147 of Constitution of J&K. Further, the act also challenges the very basis on which J&K was made a part of India. The special status is given to J&K by both Instrument of Accession and Article 370 which can only be changed on the recommendation of the Constituent Assembly of the state and not otherwise. 

Silencing the valley: A complete Lockdown

The major concern expressed in this area, is that the action of re-organizing the state of J&K was supplemented by a complete lockdown of the valley which actually goes against the basic norms of democracy, as there was no scope given to the people of J&K to have a say in the complete process of re-organisation of the state of J&K. The petition also stated that, the complete notion of transferring the power of the state to the Parliament under the pretext of Article 356 which is ‘purely temporary’ in nature has been completely ignored. Further, according to the Constitution, such a power cannot even be used to change the nature of the state and to deplore the power of the state legislature. Hence, the petition filed in the Supreme Court by 6 prominent citizens successfully raised the alarming issues surrounding the abrogation of Article 370. 

Conclusion

Lastly, from all the above interpretations and discussions put forth about the abrogation of Article 370, it can finally be concluded that there were both pros and cons of the said issue. But, at the same time having a close look at the detailed discussion on the matter, it can be concluded that, the abrogation doesn’t fall under the constitutional aspect and hence, from a legal perspective it could be termed ‘unconstitutional’ and further, the cons of the issue seem to be more escalated when compared with the pros. Hence, it can finally be concluded that Kashmir calls for justice of its people and the human rights violations taking place in the valley should be looked into and rectified at the earliest.

References

Online Sources

1. Devansh Sharma, All you need to know about buying property in Kashmir, Economic Times, (August 16th 2019) https://economictimes.indiatimes.com/industry/services/property-/-cstruction/all-you-need-to-know-about-buying-property-in-jammu-kashmir/articleshow/70695987.cms. 8
2. Divanysh Gupta, Constitutionality of article 370- A timeline of events, India Today ( August 28th 2019) https://www.indiatoday.in/india/story/article-370-case-constitution-bench-timeline-supreme-court-1592505-2019-08-28 5
3. Gaurav Sethi, Shyama Prakash Mukherjee’s views on Article 370, India Today (26th August 2017) https://www.indiatoday.in/india/story/ek-desk-mein-do-vidhan-nahi-chaleinge-bjp-realises-founder-shyama-prasad-mukherjee-dream-1577345-2019-08-05 7
4. Kritika Goel, Kashmir Plebiscite Explained: But is it a debate or a settlement, The Quint (February 26th 2019) https://www.thequint.com/explainers/kashmir-plebiscite-india-pakistan-explained 7
5. Namrata, Special Status of Jammu and Kashmir, Ipleaders (May 30th 2018) https://blog.ipleaders.in/article-370-jammu-and-kashmir/ 4

Cases

1. Keshavanand Bharati v. State of Kerala, (1973) 4 SCC 225, decided on August 24th 1973 6
2. Puranlal Lakhanpal v. The President of India and others, 1961 AIR 1519, Supreme Court of India. 6
3. Sampat Prakash v. State of Jammu and Kashmir 1969 AIR 1153 Supreme Court of India. 9

Books

1. A. S Anand, The Constitution of Jammu and Kashmir: Its development and Comments, Pg 134-45, Universal (2019) 6
2. B.L Kaul, My Kashmir in Peace and Turbulence: The story of native in exile, Pg 14-46, Oriental Publication, 2019. 9
3. Monika Arora, Facts and law on Article 370 and 35A, Pg 213-23, Paperback (2019) 5

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