The Modi government has changed the narrative of politics with their historic decision of 5 August 2019 when they aborted Articles 370 and 35A, which gave special privileges to Jammu and Kashmir. This abrogation made Jammu and Kashmir and Ladakh into two Union Territories.
Let’s first see how this began—the partition of India didn’t come with all peace; it entered India through several negotiations and Article 370 was also one of them, which the then King of Jammu and Kashmir, Raja Hari Singh asked for to be a part of India. Article 370 was included in the Indian Constitution on 17 October 1949, exempting Jammu and Kashmir from the Indian Constitution. This made sure that the state can have its constitution and the Indian Parliament will have restrictive legislative power in Jammu and Kashmir. Consultation with the state government was required for establishing a central law via the Instrument of Accession (IoA). For other matters concurrence of state government was a must. The IoA came into practice after the Independence act of 1947 which divided British India into India and Pakistan.
All the 600 princely states were given an option to join either the Dominion of India or the Dominion of Pakistan via IoA. It was no written application but the states were given the freedom to alter the form and join as per they wanted to. The main aim of this agreement was to honour the promises made between the two states. In case they weren’t honoured, then the parties can be restored to their original position.
The centre can only legislate in Jammu and Kashmir in matters of Defence, External Affairs and Communications. The original draft of Article 370 (back then 306A) was drafted by the Government of Jammu and Kashmir, and after several negotiations, the bill was finally passed by the Constituent Assembly on 27 May 1949. It was included in Part XXI of the Constitution.
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This came as a ‘Temporary, Transitional and Special Provisions’ which means any time the Government of Jammu and Kashmir can modify, delete or retain it. It also meant that the accession is temporary until a plebiscite.
Article 35A was the child of Article 370, which was introduced through a Presidential Order in 1954. It isn’t found in the main body of the Constitution but it is in Appendix I, empowering the Jammu and Kashmir legislature to define the permanent resident ship and special rights and privileges.
Now we know the conditions under which these special amendments were made in the Indian constitution. The resolution to terminate Article 370 came when Pakistan-made mines were found in the route of Amarnath Yatris. The tourists were asked to move and on August 5 reorganization of the Bill was decided. This is how Jammu and Kashmir became a Union Territory with legislature and Ladakh became a Union Territory without legislature.
With the revocation of the Article, all the aspects of the Indian Constitution will now apply to Jammu and Kashmir including the Fundamental Rights. It will now have a Lieutenant-Governor just like Delhi or Puducherry. People of other states will now be able to buy properties in Jammu and Kashmir. It has also altered the geography of India as it now has 28 states instead of 29 states.
Now the non-Kashmiris can also get jobs in Kashmir. This has also extended the benefits of reservation for the residents of Jammu and Kashmir under the SCs, STs and OBCs.
This dissolution did not come as a surprise because, by the 1954 order, almost the entire Indian Constitution was extended to Jammu and Kashmir through Constitutional amendments—94 of 97 entries in the Union List apply to Jammu and Kashmir; 26 out of 47 items of the Concurrent List have been extended; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules. An interesting fact is that major Constitutional amendments were made in the Jammu and Kashmir Constitution but the President had no right to do it under Article 370.
Article 370 is also a part of federalism which is an unsaid principle in the Indian Constitution. For passing this law, the President was entitled to take permission from the state government. However, it did not wait until the formation of it which makes the ordinance questionable and it breaches constitutional and political morality.
Although the abolition is being bashed as an ‘unbiased majoritarianism’ but looking closely at it, we will see it has restored equality in some sense.
The very first thing is that the Constitution of Jammu and Kashmir had never mentioned the word ‘minority’ in it. In this Muslim-dominated constitution, the rights of the minority were never questioned. In fact, it was also only one state with no tribal rights. Even the revocation of Article 35A is being seriously challenged because now the non-permanent residents can also buy land in Kashmir. Initially, the right was possessed by only permanent residents. One might lose the permanent resident status if they married non-Kashmiris. Now, that this provision no longer exists even there is no hurdle to that.
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Thousands of Valmikis (Dalits) were brought from Punjab as government sweepers in 1957 and under the previous Article 35A, they were not even allowed an SC certificate and couldn’t even get a government job other than the sweepers. This barred them from the beneficial schemes specified under the SC provisions. Even the Hindu and Sikh refugees from West Pakistan remained non-PR second-class citizens, while Uighur Muslims from Xinjiang were granted PR status.
It is to be seen now that after this alteration, the opposition will create a menace and even some countries will play the terrorist hate crime technique. However, the government should ensure a safer environment followed by equal dispersal of resources in these two UTs. It opens an international door for the big players like China, USA and Russia who will try exercising a third party role in the region but it remains to be seen how the government with minimum external intrusion can promise a better life to the citizens of the newly formed UTs.
