Nowhere in the history of Indian Democracy, we have witnessed something as extreme as the recent act of demolition of the Federal Structure. The Union Home Minister Amit Shah introduced two resolutions and a Bill in the Indian Parliament on Monday that would fundamentally end the special status of Jammu and Kashmir(Article 370), removing all special provisions and bifurcate the state into two union territories, Jammu and Kashmir with a legislature, and Ladakh without one.
With the deployment of massive troops, internet blockade, communication blackout, imposed military lockdown, and all the prominent leaders under house arrest, the Union Government has decided the fate of Jammu and Kashmir without the involvement of its citizens. And it was all started with mass evacuation of tourists citing security concerns for Hindu Pilgrims.
How did it happen?
On Monday, the Home minister Amit Shah initiated the drastic changes by scrapping the “special status” given to the state of Jammu and Kashmir under Article 370. Making the announcement in the Rajya Sabha, Shah said that, “an amendment to the Article had been issued through a presidential order”.
The order, called the Constitution (Application to Jammu & Kashmir) Order 2019, supersedes the Constitution (Application to Jammu and Kashmir) Order 1954, which defined the constitutional position of the state of Jammu & Kashmir with the Indian Union. The 1954 order consists of Article 35A, which allowed special privileges to the state’s ‘permanent residents’, as defined by the J&K legislature. The new order, therefore, scraps Article 35A.
It also amends Clause 3 of Article 370, which allows the President to revoke Article 370 in consultation with the “constituent assembly of the state” — to substitute the expression “constituent assembly of the state” with “legislative assembly of the state”
The next likely step may be invoking the new Article 370 (3) to declare Article 370 inoperative, with the recommendation of the legislative assembly. J&K is currently under Governor’s rule and doesn’t have a legislative assembly.
What is Article 370 and what is going to change now?
In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult law minister Bhim Rao Ambedkar to prepare the draft of a suitable article to be included in the Constitution. It was drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions. Therefore, it provided temporary provisions to the state of Jammu and Kashmir, granting it special autonomy. Article 370 thus, lays down different laws of citizenship as well as property rights for residents. It also allowed the state to have its own constitution.
It is because of Article 370, the Indian Parliament needs the state legislature’s concurrence for applying any law to the state, except those concerning defense, foreign affairs, communications, and ancillary matters. Similar provisions also exist in other areas of the country, including Nagaland, Arunachal Pradesh, Andaman & Nicobar Islands, and tribal areas of Himachal Pradesh.
Article 35 nullified
Article 35, was inserted in the Constitution through special Presidential order in 1954 and gives special powers to the state to determine who can be the recipient of special rights and privileges in public sector jobs, acquisition of property in the state, scholarships and other public aid and welfare. It also empowers the Jammu & Kashmir to define who is a “permanent resident” of the state. Therefore all the special rights given to the residents of the area are invalid now.
Decisions such as the purchase of land and property in the state, permanent settlement as a resident in the state, employment in the public sector are determined through Article 35A.
Often citing one of the conditions of the article which deters women from the state to marry outside the boundary of the state, and if she does, her children cannot be permanent residents, restricting her inheritance rights. The BJP has been an avid advocate for scrapping 35A (included the issue in the manifesto for 2019 Lok Sabha election).
Why was the special status given to Jammu and Kashmir in the first place?
After Independence and Partition, the government of India allowed a number of “princely states” to join on their own terms. Kashmir, which was poised between Pakistan and India, an ambiguous position about its association with either India or Pakistan. After the invasion of tribesmen and Pakistan Army men in disguise, Raja Hari Singh of Jammu and Kashmir signed an Instrument of Accession and the state eventually made its way into the Union.
Here’s a True Copy of Jammu & Kashmir’s Instrument of Accession | Read it to understand the backstory to Art 370. That Article is the legal glue that binds this instrument of accession to Article 1 of the Constitution. It’s criminal to gut this provision! https://t.co/QJsFLfKTrS
— Siddharth (@svaradarajan) August 5, 2019
A number of special conditions were given in an agreement for the association of the region with India. A plebiscite was also promised to the people of the state but it never happened because both India and Pakistan played the blame game of military occupation. The outcome, however, made Jammu and Kashmir a part of India, with a unique status and autonomy given in the Republic.
Now, with the only link (Article 370) between India and Jammu and Kasmir being scrapped by the government of India, the relationship seems to be getting bitter in the days to come.
The opposition failed again!
The opposition like the previous term has been apprehensive of taking steps against the “nationalistic” acts by the government. The impact of narratives which carries the hysteria of ‘national interest’ can be understood with the fact that even the most vocal critiques of the government supported the move.
We support the govt on its decisions on J & K. We hope this will bring peace and development in the state.
— Arvind Kejriwal (@ArvindKejriwal) August 5, 2019
Delhi Chief Minister Arvind Kejriwal was one of the first leaders to back Amit Shah’s decision. Ironically, he has been criticizing the government for imposing its powers in the Capital which also happens to be a Union Territory. He has been demanding full statehood of Delhi but decided that Jammu and Kashmir would function better as Union Territory with lesser autonomy.
Telugu Desam Party supports the Union Govt as it seeks to repeal Article 370. I pray for the peace and prosperity of the people of J&K.#Article370
— N Chandrababu Naidu (@ncbn) August 5, 2019
The Bahujan Samaj Party (BSP), has also backed the decision despite criticizing BJP repeatedly for killing the democratic structure in the country and igniting hatred within the communities for vote bank. The Telegu Dasam Party, Biju Janata Dal (BJD) and the YSR Congress Party, have also sided with the government on some other issues, voiced approval as well.
Former J&K chief minister and PDP leader Mehbooba Mufti, (who was under house arrest) called it the “darkest day in Indian democracy”.
Today marks the darkest day in Indian democracy. Decision of J&K leadership to reject 2 nation theory in 1947 & align with India has backfired. Unilateral decision of GOI to scrap Article 370 is illegal & unconstitutional which will make India an occupational force in J&K.
— Mehbooba Mufti (@MehboobaMufti) August 5, 2019
The Janata Dal (United), a BJP ally, said it did not want Article 370 revoked and did not support the government. JD(U) MPs walked out of the house to express their dissent. Congress leader Ghulam Nabi Azad said that the BJP has “murdered” the Constitution and India’s democracy.
Shashi Tharoor,Congress on #Article370:This is not the Indian democracy we have cherished for more than 7 decades.The assurances that successive rulers of India including those of BJP have given people&leaders of Kashmir and the international community now stand torn into shreds. pic.twitter.com/DzOlnmiJ4m
— ANI (@ANI) August 5, 2019
What is at the stake?
The Centre’s proposals on Jammu and Kashmir are bound to be challenged before the Supreme Court. What the court will be called upon to decide will be much more than the technical interpretation of the law. What is at stake is the very character of federalism in the Constitution, which has in the past been declared by the Supreme Court to be part of the basic structure of the document.
Can a state decide the fate of millions in such a casual manner against the wishes of the people of the region, especially when the state is under virtual curfew with phone connections snapped and physical movement curtailed?