–Written By Rishab Gupta
“You wish India should protect your borders…. & Kashmir should get equal status as India. But the government of India has only limited powers & Indian people to have no right in Kashmir. To give consent in your proposal would be a treacherous thing against the interest of India & I, as a Law Minister of India will never do.”
said Dr B.R. Ambedkar while refusing to draft Article 370.
After 70 years, the Modi government turned the words into reality by scrapping Article 370 from the Indian Constitution. A state, sold for 7.5 million rupees by Britishers to Maharaja Gulab Singh of Dogra Dynasty in 1846 raised India’s brows when after the Lapse of British Paramountcy where India was fragmented into 565 princely states, the Maharaja Hari Singh refused to accede to either of the two dominions & signed a standstill agreement with Pakistan under the hope of time to decide. But like a dagger in the back in October 1947, ‘Kabalis’, Pakistani Tribal groups supported by Pakistani Army attacked Kashmir & Maharaja Hari Singh ensured Kashmir’s protection by signing an Instrument of Accession with India. It was followed by J.L. Nehru referring the matter to UN dominated by US & Britain then, which knowing the strategic location of Kashmir brought a difficult & unfulfilled three stepped UN Security Council Resolution 47 resulting in formation of LOC (Line of Control) between India & Pakistan.
To effect the accession, despite Ambedkar’s resistance, Nehru & Sheikh Abdulla insisted to add in Constitution of India ‘Temporary Provision for J&K’ under Article 370 drafted by Gopalswami Ayyangar, a member of the constituent assembly & a former Diwan of Maharaja Hari Singh, disallowing application of Article 238 of Indian Constitution which deals with ‘states’ in Jammu and Kashmir (J&K) and subjecting Parliament’s power of law-making over many of the subjects of Union & Concurrent list to the concurrence of its State Legislature. As a follow-up to the above procedure, the Constitution (Application to Jammu & Kashmir) Order, 1954 was passed under Article 370 by the President seeking to implement Delhi Agreement 1952 entered into between Union & J&K constituent assembly which gave people of J&K greater autonomy by allowing permanent residents certificate for J&K, separate flag, 6-year term for the state legislature, extending the jurisdiction of Supreme court, Union’s power to impose National Emergency, limited edition application of RTI, RTE, CBI, CAG in J&K etc.
Secondly, Article 35A added through this order gave J&K legislature a carte Blanche to decide permanent residency status in the state confers special rights in public sector jobs for natives, acquisition of properties, scholarships & other public aids. While clarifying the position of J&K with India, the Supreme Court in December 2016 held that J&K has “no vestige” of sovereignty outside
Constitution of India & its own constitution is subordinate to it. Certain controversies surfaced when in 1957, Valmiki’s from Punjab were brought as ‘Safai Karmcharis’ in Kashmir on the pretext of offering them Permanent resident rights which was later turned down to be granted because of non-compliance of the condition that their future generations would remain in the same profession. Another controversy popped when refugees from Western Pakistan after independence were denied PRC due to non-fulfilment of the condition of prior stay of 10 years prior to the cut-off date of 1954. The third controversy followed when the Kashmiri Pandits were driven out of state in the 1990s.
The Union government, unlike in other states, did not have much say in resolving the said controversies due to Article 370. So, the question arose, what good, did the provision do? The gains from the incorporation of Article 370 includes the absence of outsider population in J&K and business competition, low prices of real estate, no population blast, preservation of environment & ecology, flourishing art & craft industry, lower crime rate, maintenance of India’s claim over Kashmir.
However, on the flip side, cons include lack of medical facilities, poor basic modern facilities like internet, electricity, 24-hour water, fewer opportunities for students, nearly zero industrialisation, terrorism, corruption, low GDP growth, unemployment resulting into radicalisation etc. Also, there is low Non-Muslim participation in J&K politics. Then, the question arose if, for the government, the cons weigh more than pros, and they wished to undo the so termed historic mistake, how did they repeal Article 370?
Article 370(3) empowers the President to repeal the provision with the the concurrence of State Legislature. But like a cherry on the cake, President’s rule in the valley eased the revocation of Article 370 as Article 367 was amended to replace the term ‘State legislature’ with the term ‘governor of state’ and therefore Governor concurred on behalf of the state legislature rendering Article 370 & 35A of the Indian constitution ineffective since the time of public notification. Further, the Parliament passed the law to effect, that is, Jammu & Kashmir Reorganisation Bill, 2019. The Bill scrapped special powers exercised by J&K like dual citizenship, separate flag, application of financial emergency, reservation for minorities, outsiders to buy property in the state, bifurcation of the state in J&K and Ladakh region with former as Union Territory(UT) with legislature & latter as UT Without Legislature.
The BJP appears to have planned the move well in advance by forming the government in the state in alliance with their old ideological rival like PDP followed by pulling back its support resulting in fall of government followed by the imposition of President’s Rule in the state. Everything was planned to ease the process of concurrence which would be required while scrapping Article 370. And further to keep a check on weeds around the bush they banned radicalising organisations like Jamat-e-Islamia withdrew separatist’s security, sealing their source of funds & their centres of operations, deployment of troops in large numbers in the state, house arrest of local leaders. On the other side of the border, an internationally isolated & debt trapped Pakistan may also retaliate by military or in International Court of Justice or by raising the issue in UN General Assembly for which the home minister assured appropriate measures & actions, if the situation arises.
Now, the challenge that awaits the government is to win the constitutional scrutiny of this amendment in the court of law, reactions of the natives, support of the international community on the move & to face other tough forces. However, it would be too early to predict all the possible challenges that may obstruct the implementation of this new law in the state. But for India and J&K in particular, it would not be wrong to say that it is a time when the common destination of prosperity beckons us to seek a new beginning.
