Elections and party promises go hand in hand; some to garner votes and others to bring about a real change in the country for its people. One such electoral promise made by contesting party, BJP in the Lok Sabha elections was the abrogation of Article 370 that grants special status to the state of Jammu & Kashmir. In its manifesto, the BJP had reiterated its stand on the provision and promised to abrogate it once it is re-elected back to power. It had also promised to annul Section 35A that allows the state legislature to decide who all fall under the realm of being “permanent residents” and goes to bestow special rights and privileges on them.
Interestingly, Jammu and Kashmir is not the only state for which special provisions have been laid down under the Constitution of India. A wide range of safeguards including preservation and protection of ethnic identity, culture, provision of employment opportunities, reservation of parliamentary and assembly seats and welfare initiatives are extended to the indigenous people of Manipur, Assam, Nagaland, Sikkim, Mizoram, Arunachal Pradesh, Andhra Pradesh, Goa and districts of Hyderabad- Karnataka region also form part of the Constitution.
For years there has been a debate about the validity of these provisions and it has formed the topic of the electoral campaign in the past. With the BJP being elected back to power, the party is bullish in upping the election rhetoric of repealing the legal provision that has defined the relationship between the state of Jammu & Kashmir and the rest of India since its adoption in 1949.
The party believes that getting rid of the legal provision will bring the state at par with the rest of the country and work towards cracking down on terrorism in the state. More importantly, it will take away the autonomous status enjoyed by the state that even has its own constitution and flag.
The task at the hands of the central government is a rather extraordinary one as it points towards two plausible scenarios- integration of Jammu & Kashmir with the rest of India or disintegration of Jammu & Kashmir from India. Having said that, the abrogation of the provision is not going to be an easy feat as it is ridden with roadblocks like a complex legislative procedure and could put the accession of the state to India in jeopardy. Before the BJP government is able to scrap off both the provisions, there are numerous constitutional and law-related questions that need to be settled. For instance, is Article 370 constitutionally valid? How does Article 370 create problems? Was it meant to be temporary or permanent in nature? What happens to the demographic and social structure of Jammu & Kashmir if the abrogation is successful?
Through decades of history of Article 370, the state government of Jammu & Kashmir and the central government have played non-conventional roles that have at times resulted in turmoil in the state and shaky relations with the neighbouring country of Pakistan but its abrogation requires the immediate redressal of an obvious question- can Article 370 be revoked and what lies at the end of that tunnel?
Before independence, Jammu & Kashmir, Maharaja Hari Singh was the ruler of the state and was in control of all aspects of administration with the exception of defence, foreign affairs and communication that were guarded by the British. Upon independence, he chose to accede the state to India but only conditionally, i.e., on the signing on the instrument of accession. It was agreed that the dominion of India would have control over the princely state in three areas – defence, foreign affairs and communication with the other areas being left under the purview of Singh. This came to be known as Article 370.
The article was meant to be a “temporary provision” for the state and restricts the applicability of various provisions of the Constitution by curtailing the power of Parliament to make laws on subjects which fall under the union and concurrent lists.
In 1957, the constituent assembly of Jammu & Kashmir was dissolved and the state enacted its own constitution but the glory of Article 370 continued despite being abrogated. Over the years, the provision that defined a “permanent resident” as a person who was a “state subject on 14 May 1956” or who has been a “resident of the state for 10 years” continued and contributed to the autonomous status that the state came to acquire.
Similarly, Section 35A was incorporated into the Constitution in 1954 under a presidential order passed by the then prime minister Dr. Rajendra Prasad and it conferred special rights and privileges to the residents of Jammu & Kashmir in the acquisition of property in the state, employment, scholarships, and other public welfare. The way in which this provision was inserted into the Constitution has been in question for years and is under challenge in the Supreme Court.
The path for revocation of Article 370 is fairly complex and bridled with problems. These problems arise out of questions relating to their terms of incorporation and the validity of their present constitutional status. Constitutional experts are of the view that its abrogation cannot be affected as the same would begin to cast doubt on the very foundation of the accession of Jammu & Kashmir to India back in 1947.
According to lawyer and constitutional expert Rajiv Dhavan, Article 370 cannot be abrogated because that would mean that the basis of accession would be in jeopardy. He, however, is of the view that the accession of Jammu & Kashmir to India is permanent in nature. Meeting him halfway is former Union Law Minister Shanti Bhushan, who is of the view that under Article 368 of the Constitution, the Parliament has the power to amend the Constitution but this would be problematic since the Parliament cannot amend the basic structure of the Constitution.
There are doubts over whether or not Article 370 that accords autonomous status to Jammu & Kashmir is a part of the basic structure of the Constitution is a topic that has been the topic of numerous debates. For those who say it does not form part of the basic structure of the Constitution rely on the fact that it was introduced as a “temporary provision” due to the prevailing circumstances at that point in time and was subsequently required to be scrapped and therefore, it could not be treated as a permanent provision that can be amended.
Taking a contrasting stand, the Supreme Court in April 2018 had observed that Article 370 was not a temporary provision while hearing a public interest litigation seeking to declare it to be a temporary provision. “The issue concerned is covered by the judgment of this court in the 2017 SARFAESI matter, where we have held that despite the headnote of Article 370, it is not a temporary provision,” a bench of Justices A.K. Goel and R.F. Nariman had said while implying that the provision was essentially permanent.
The counter view holding that the constitution can be amended in order to abrogate the provision believe in the position taken by the Supreme Court, according to which the provision that was initially meant to be temporary in nature has acquired permanent status over the last 60 years.
Article 35A that allows the state legislature to decide those who fall under the realm of being “permanent residents” and bestows special rights and privileges on them was added to Part III of the Constitution under a presidential order of 1954. It has long been argued that Article 35A was added surreptitiously rather than by following the standard amendment procedure under the law. This provision that was inserted by not amending but rather modifying the Constitutional provisions has been criticized on various grounds through the years.
On closer scrutiny, the provision that confers special rights and privileges for permanent residents of Jammu & Kashmir appears to be discriminatory to people of other states by imposing restrictions on people of other states regarding employment, acquisition of immovable properties in the state, right to scholarship and other forms of govt aid. By doing so, it denies the basic right of equality enshrined under Article 14 of the Constitution. It also goes against Article 15 which prohibits discrimination on the basis of religion, caste, sex, gender, place of birth, etc.
This argument, however, may not stand strong against precedents which highlight the core principle of Article 14, which operates on the basis of ‘intelligible differentia’, i.e., classification of groups for different treatment under the law. For instance, under Chiranjit Lal Chowdhury v Union of India, the guiding principle was that ‘similarly circumstanced’ persons shall be treated alike, both in privileges conferred and liabilities imposed. The rule, therefore, would be that the likes as a group should be treated in the same manner and the unlikes as a separate classified group in a different manner between themselves. Many northeastern states also enjoy a similar kind of protection. Applying this to the present situation, it can be seen that the classification is based on an intelligible differentia, the aim of which was to preserve the autonomy of the state.
From the time of independence, the Indian Constitution has been amended a total of 103 times, with the latest amendment being effected in January for economic reservation in India. The task of amending the constitution, however, can be justified only if it is able to meet the basic structure test, i.e. it cannot alter it. Under Article 368, the Parliament has the power to amend the Constitution and the BJP may be able to get the majority required to bring about the amendment in theory, but for it to be a reality is a distant dream. Two third majority votes would require 362 MP’s backing the amendment and the BJP can easily rake up the numbers by taking help from regional parties.
The problem would begin when abrogating the provision would call for amending the basic structure of the Constitution to effect which the Parliament stands barred in view of the Supreme Court’s ruling in the Kesavananda Bharati vs State of Kerala case. The Kesavananda Bharati doctrine was formulated in 1973 by a 13-judge bench of the Supreme Court, of which a majority opinion upheld the inviolability of the Constitution such that an amendment that would alter its basic structure would not be permitted under law. Accordingly, the basic structure doctrine ensures that Article 368 would not be able to reach it. The power with regards to the relationship between Article 370, the Union of India and the state affairs rests with the state government. In case of a disagreement between the state government and the Union of India on the issue of abrogation, the outcome would be the continued existence and operation of Article 370. The other plausible side of this argument is that while the canonical Kesavanada doctrine directed for any amendment to be tested for violating the basic structure of the Constitution, Articles 370 and 35A were passed before the judgment and thus cannot be challenged based on it. The only authoritative body with powers to dissolve Article 370 was perhaps the Constituent Assembly of Jammu & Kashmir which stands dissolved with a diminutive chance of being reconstituted.
The effects of revocation of both the legal provisions could be abundant and widespread. As widely debated as the process of revocation has been, its effects could bring about legal, political and socioeconomic implications. On one hand, it may destroy the chances of a peaceful relationship between the state of Jammu & Kashmir and India, while on the other hand, it may provide adequate nourishment to this extremely delicate constitutional relationship.
In the event of revocation of Article 370, the constitution of Jammu & Kashmir will become null and void. As a result, all bodies and positions of authority that used to derive their power from the state constitution such as the cabinet of Jammu & Kashmir, High Court of the state, and the post of Chief Minister will cease to exist. The state will also not have a constitutional head either, as a designation of Governor will not remain available to the state. Apart from this, the state will have to forego its old flag and adopt India’s flag as its own.
The next step would involve the successful integration of the state with the rest of the country. This will depend on how the abrogation is chosen to be affected. If Article 370 is abrogated with exceptions and modification, that is, if its clause 1c is accepted and modified so as to keep Article 1 of the Constitution of India directly applicable to Jammu and Kashmir State and the rest of the Article 370 is abrogated, the State will become a part of India like its other constituent States. Consequently, all the other provisions of the Constitution will automatically apply in their original form to the state and the state would be construed to have merged. However, if Article 370 is abrogated in toto, Article 1 of the Constitution of India will get abrogated and will cease to apply. The non-application of provisions of the Constitution, especially Article 1 which defines the territory of India, will sever the constitutional relationship between India and the state. J&K will become theoretically independent of India (and Pakistan).
If we are to consider abrogation under the first scenario, in that case, the state will begin to operate like any other and be bound by the attached legality. For instance, the state will be bound by the laws passed by the legislators without needing to pass through the state assembly, it will be bound by the orders of the Supreme Court like any other state in India, and it will be brought under the purview of the RTI laws and of authorities like the CBI, CAG. Lastly, national emergency, state emergency, and financial emergency will be applicable to the state like any other.
The ruling BJP party has strategically chosen a cause outlined by nationalism and public will that if successful, will boomerang its image not just across the national public and but also the international arena. As the newly elected BJP govt strongly tilts towards bringing about the abrogation of the contentious Articles 370 and 35A, the climb ahead may be rocky but once on top, the party will be difficult to bring down and the same can be seen as early preparation for the party’s comeback in 2024.
Themes such as nationalism, Hindutva had been the center stage of Prime Minister Narendra Modi led BJP in his last tenure and it is likely that he may seek to alter his image, which until now was that of a divider and polarizer to that of a global leader who is largely interested in the peaceful integration of J&K into the new India. Peacebuilding initiatives with Kashmir and by implication, Pakistan, will go a long way in pitching India on the global front, especially with regards to the US. The ruling party’s heavy relying on the integration of the state, therefore, is in its best interests – both strategically and politically. Another set of experts and politicians, however, believe that if the abrogation is successful, there will be no Jammu & Kashmir left and therefore, seeing it as a voting opportunity will not serve the BJP well and could be catastrophic for the social fabric of the country as a whole.
Until now, the Parliament’s legislative power over the state is restricted to just three subjects – defence, external affairs & communications. If abrogated, the president could extend it to other provisions after consultation with state. This will bestow upon the central govt colossal power in the state as opposed to what it enjoyed until now. However, as a result of this, mainstream regional political parties in the valley such as the People’s Democratic Party and National Conference may be led to dilution. There is also a possibility of an alliance formation by these parties which may lead to an increase in militancy in the state and may force the army to take over.
One of the most important positive effects of that will be born out of the process of abrogation will be that non-Indian Kashmiris will be able to own land in the state, which until today is a territory reserved for the state’s locals. This will go a step further for women empowerment as it will do away with a discriminatory property law which denies women the right to own property in the state if she is married to a nonstate individual. More so, the people of the valley will stand empowered as they will be able to cast their vote which until now was restricted only to its permanent residents. It will not take away from the Kashmiri identity which is feared by most in the state.
Integration of the state with the rest of India will wake up the state to economic opportunities which as of now is paralyzed quite due to the prevailing circumstances and the constitutional relationship of the state with India. Doing away with the restrictive provisions is likely to open up the state’s economy as it will witness a boost in investment and influx of FDI through its borders. It will perhaps be Kashmir’s only chance to have a strong economy that will attract investors and be in a position to contribute to the nation’s GDP. Investment, both national and international, in the valley which as of today is in a sluggish state is likely to will, in turn, lead to commercialization and translate into employment opportunities for the people. The state is also expected to witness a boost in tourism since people will feel more secure travelling to the valley if it is peaceful and without the force of its protective and restrictive state laws.
Most Kashmiri’s stand by the belief that the Constitution framers had in mind the safeguarding of the state and preservation of its identity while drafting the provision of Article 370 and the privileges it bestows on the locals. If abrogation of the provisions, both Article 370 and 35A is allowed, the state will lose its special identity which may lead to bloodshed and violence in the state. They feel that any threat to the status quo by tinkering with the constitutional provisions will not be taken well by the locals who foresee a mass movement against it.
Certain legal experts are of the view that Kashmir’s identity is at its core and the BJP is playing with fire with its decision to change this. It will take away the jobs, land and property rights and employment opportunities that till today the locals enjoyed. However, this argument holds no water when juxtaposed against years of discrimination faced by Kashmiri pundits who were forced out of their homeland as a result of ethnic cleansing in the Muslim majority state. Rohingyas and Bangladesh migrants have also suffered at the hands of these discriminatory provisions.
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