For the past one month, the situation in Kashmir was electrifying. Huge amounts of Para-military troops were deployed in Kashmir. Many Political analysts and media widely speculated that this move was linked to the Abrogation of Article 35A and Article 370. Proving their speculations to be true, the President of India on August 5, 2019, issued a Presidential order (Application to the state of Jammu and Kashmir), 2019. But before we proceed further, let's have a quick recap on Kashmir and its problems, which is, of course, discussed very often in various platforms.
A brief history of the Jammu and Kashmir
The year was 1846 - The first Anglo- Sikh war has just concluded where the British emerged victoriously. Raja Gulab Singh, who was hitherto administering Jammu under the suzerainty of the Sikh Empire, was also given an additional territory of Kashmir to be governed by the British. Hence the Dogra Rule was born in Kashmir.
In 1927, Maharaja Hari Singh, the last Dogra king of Jammu and Kashmir, enacts legal provisions for the people of Jammu and Kashmir, so that no "outsider" can own any land in the state and also they could have right to government offices. This in principle became Article 35A later.
The Mountbatten's plan was announced during 3rd June of 1947, in which the princely states were given choices, either to join India or Pakistan or to remain independent. Maharaja Hari Singh, the ruler of Jammu and Kashmir, chose to be independent.
Shortly after the independence, Pakistan invades Kashmir. Its soldiers were disguised in the form of local Pashtuns and they carry out an offensive against Kashmir. Not expecting this sudden attack, Maharaja Hari Singh ran towards the Indian Government, seeking protection. The Instrument of Accession was signed by the Earl of Mountbatten, the then Governor-General of India and Maharaja Hari Singh. It says that except for Defense, External Affairs and Communications, all the matters could be governed by Kashmiris themselves. Pandit Jawaharlal Nehru appoints Mr. Gopalaswamy Ayyangar, an IAS officer, who drafts the Article 370, which defines the relation between Indian and Kashmir. While signing the IoA, the Indian Government also promised that it would conduct a plebiscite in the state and leave the decision of whether to join either country or not, with the people of Kashmir itself.
Meanwhile, Mr.Sheikh Abdullah, the erstwhile president of Muslim Conference, which later got renamed as National Conference, becomes the Prime Minister of Jammu and Kashmir in 1948. This elevated status for Jammu and Kashmir had also got the blessings of Indian PM Nehru.
Around this period, Nehru raises the Kashmir conflict in the UN. UN intervenes and demarcates Jammu and Kashmir between both the countries by drawing Ceasefire line, which later becomes re-designated as Line of Control
As per the special powers conferred by Article 370, Kashmir begins to draft its constitution by forming a Constitution assembly. A historic Delhi Agreement was reached between the Indian Government and Kashmir in 1952.
The relations between Nehru and Sheik Abdullah began to deteriorate around 1954. The fourth Presidential Order was issued to the state of Jammu and Kashmir. Contrary to popular belief, this Presidential order revokes a large amount of autonomy conferred to the state. For instance, it downgrades the status of Sadr I Riyasat to the Governor of Jammu and Kashmir and the status of the Prime Minister to the Chief Minister of Jammu and Kashmir. Unfortunately, this Presidential order also introduces a controversial Article 35A.
There is still a long-standing debate about the constitutionality of inserting Article 35A into the Indian Constitution. Noted Jurists and Commentators on the Indian Constitution argue that this article was introduced as a Presidential order, without the approval of Parliament. Others say, since this article exclusively deals with the state of Jammu and Kashmir, it is indeed constitutional under the powers conferred to the president by the clause (1) of Article 370 (Now clauses are repealed).
The Constitution Assembly of Jammu and Kashmir was dissolved in 1956. It had remained silent about the status of article 370 during the time of its dissolution. This is significant because Article 370 clause(3) mandates the approval of the Constitutional Assembly of Jammu and Kashmir to abrogate Article 370. As the relation between Sheikh Abdullah and Nehru reaches the nadir, Sheikh Abdullah gets arrested and Bakshi Gulab Mohammed becomes the chief minister of the state.
Though things were not great for Kashmir, it was at least fine. The Abdullah family continued to dominate the Jammu and Kashmir Politics. Central Government also didn't have much to complain about the state. It was in the ill-fated 1987 elections, the hell broke loose in the Kashmir.
Farooq Abdullah was re-elected as Chief Minister of the state. It was unexpected because, during that time, he was hugely unpopular. It was and is widely speculated that the National Conference under Farooq Abdullah and the Union Government of Rajiv Gandhi, jointly rigged the elections. The Union Government under Rajiv, according to various political analysts, felt that it was important to have National Conference Rule at the Jammu and Kashmir to prevent the state from seceding India. There were widespread protests following this event and the state was in complete disarray. Taking advantage of this situation, Pakistan's ISI began to shift its attention from Khalistan insurgency to Kashmir Unrest. Communal wars broke and it leads to the mass exodus of Kashmiri Pandits from the state in 1991. Jammu and Kashmir which was hitherto peaceful were imposed with AFSPA - The Armed Forces (Special Powers) Act. This also leads to the formation of All Parties Hurriyat Conference, where separatists (those who want Kashmir to secede away from India) form an alliance to champion their cause. Sayid Ali Shah Geelani, Umar Farooq are some prominent voices.
Since then the state of Jammu and Kashmir has been a security headache for India. The area of Gilgit Baltistan, which India refers to as Pakistan occupied Kashmir has been infested with terrorist launch pads and camps. Terrorism has, no doubt, increased manifold in this region. The situation becomes even worse with the constant ceasefire violation across the LoC by the Pakistani Army.
What is the need to revoke Article 35A?
The Literacy rate of Jammu and Kashmir is 67.16% according to the 2011 Census, which is slightly below the National Average of 74%. But the unemployment rate in the state is very high (about 70%). Article 35A prohibits outsiders to buy lands in Kashmir. Hence there are very few private investments happening in the state. Jammu and Kashmir have a huge potential to grow in the Tourism sector. The growth rate of the state is also erratic. If there is no militancy, the state experiences growth. The unemployment among the youth drives them desperate to earn money. It has been alleged that the separatists in the state are being funded by Pakistan's ISI to provoke the Union Government. The unemployed youths in the state are allegedly provided with money by these separatists to carry out anti-national activities such as stone pelting on the police force, terrorism etc.
Where does Article 370 seem to stand in the way of development in Kashmir?
Several regressive practices for which the Indian Government has enacted suitable legislation to ban them has not been applied to the state of Jammu and Kashmir. Child Marriage was still legal in Kashmir. This state has also opposed the Safai Karamchari act. These are some few examples.
Several pro-development legislation like, Right to Education, Right to Information, National Minority Commission, Insolvency and Bankruptcy Code, Multiple Disability act, Reservation for Dalits etc did not apply to the state of Jammu and Kashmir because its Government chose not to accept them.
Why is BJP so serious about scrapping Article 370?
Syama Prasad Mukherjee was the founder of Bharatiya Jana Sangh, the predecessor to the present Bharatiya Janata Party. He was once a part of Nehru's Cabinet, serving as the minister of Industry and Supply. Syama quit the Congress mainly because of the differences he had with Nehru, due to the introduction of Article 370. Syama Prasad was incarcerated in Srinagar Prison by Sheikh Abdulla's Govt. He passed away while he was imprisoned.
What is so special about August 5, 2019, Presidential order ?
The Social Media is going frenzy about Article 370 and Article 35A, But let us understand clearly. Article 370 is not scrapped. Rather the effect of the article is nullified through the Presidential Order (Application to the State of Jammu and Kashmir) 2019.
To explain further, please look at the PO issued. It says, from the powers conferred by the clause 1 of Article 370, President on consultation with the Governor of the Jammu and Kashmir, issues an order, which
Supercedes the Presidential order (Application to the state of Jammu and Kashmir) 1954.
Note this carefully. It was through this PO, Article 35A was inserted. Hence by using the word supercede, Govt is burying Article 35A effectively.
Now, continuing further in the Presidential Order :
2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir
This is the part which is making the article 370 impotent. So it is more like Article 370 being invoked to kill itself. What they are trying to say is, all the provisions of the Indian Constitution, including all its amendments, get applied to Jammu and Kashmir as well.
Proceeding further, it reads:
To article 367, there shall be added the following clause, namely:-
For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir-
a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in proviso to clause (3) of article 370 of this Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State"."
Now please look at what they have done to Art 367. Art 367 is an interpretation article, meaning various terms mentioned in other parts of the constitution are explained here as to how to "interpret them".
The real game-changers are Art 367 (4)(c) and 367 (4)(d). Since you can't directly amend Art 370, they have used this PO to add a clause in Art 367, (WITH RESPECT TO JAMMU & KASHMIR )so that as an interpretation, the meaning of the article 370 changes.
When we look at 367(4)(d), we must keep in mind that, Constitutional Assembly of J&K was dissolved back in 1956.
So after this PO was passed in August 5, 2019, Govt tables the resolution to abrogate Art 370 in the Parliament and also a bill to bifurcate J&K and Ladakh, simultaneously making them into UTs.
Having passed the Resolution on both the Houses with an overwhelming Majority, the president issues a notification which reads as follows :
"In exercise of powers conferred by clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August 2019, all clauses of the said Article 370 shall cease to be operative except the following which shall read as follows, namely :
Article 370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise".
Since Govt has already issued the PO, which says it has to interpret "Constitutional Assembly" as "Legislative Assembly" in Art 370(3), the president, once again from the powers conferred by both 370(1) and 370(3), abrogates Art 370 and effectively replaces all its clauses with the text, which means, Indian constitution with all its amendments is applicable to J&K as well.
So this is how the legal minds of BJP have worked to abrogate the original clauses in Art 370 and have replaced it with a completely new character.
So How this is going to affect Jammu & Kashmir?
This move is going to have far-reaching implications. There is overwhelming support for this move by the public. The first obvious ones are people who don't belong to Jammu and Kashmir can also buy land there. Provided if there is no militancy, this can lead to huge development of the region. Next good thing coming out of this is, Kashmiri women can enjoy equal inheritance rights as granting to men. Since the Constitution of India applies in its entirety to the state of Jammu and Kashmir, the rights and protections, which were hitherto not enjoyed by those people as mentioned earlier in this article, can be enjoyed by them.
The government says that bifurcation was done to provide greater autonomy to Ladakh. Around a year back the Ladakh Autonomous Hill Development Council (LAHDC) of both Leh and Kargil had unanimously passed a resolution, demanding "complete autonomy from Kashmir's administrative setup".The LAHDC has been claiming that the J&K government had been discriminating against Ladakh. They would cite the reason that in terms of development they were being treated differently. Ladakh has already had a semblance of autonomy after the formation of LAHDC which gives the people of Leh and Kargil districts powers of local governance. The Union Territory of Ladakh does not have Legislative assembly and will be administered jointly by the Lieutenant Governor of the Jammu and Kashmir. (The Bifurcation bill re-designates Governor of Jammu and Kashmir as Lieutenant Governor of the same)
Jammu and Kashmir will be a Union terrirtory with a Legislative Assembly, an administrative setup we see in New Delhi and Puducherry. This is significant because the Police department will come under the Union Government now.
Pakistan is shocked and visibly upset by the developments happening in the state. None of the countries seems to support Pakistan in this regard. Pakistan's top brass is trying to appease its people by calling back its High commissioner from India, expelling Indian High Commissioner back to India, cancelling all its train and bus services to India. But all of these remains symbolic as there are not many options available at the hands of Pakistan
The UN, US and China have advised both the countries to resolve the issue bilaterally. This is a tacit victory for Indian diplomacy as India has always reiterated that the Kashmir issue would remain bilateral. The surprise support for the move came from the UAE. An interesting development came from Taliban of Afghanistan, who has asked Pakistan not to drag them into the bilateral issue between Pakistan and India.
As for revoking the special status of the state, we will have to wait and see, as to what would be its repercussions. Although this move is popular among the Indians, we do not know for sure that the Kashmiris are happy about this. Also, some section of people has complained that the union government has scrapped the special status unilaterally, without considering the views of the major political leaders in that state. If the Government can tackle the militancy happening in Kashmir and Ceasefire violation of Pakistani Army along the LoC, no doubt that this move would be a game-changer for the state.
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