Article 370 gone or left, creates tremors

By Anil Anand

Jammu and Kashmir has lost its special status and special constitutional relationship that the state had with India. Yes, it is true! Has the Article 370 of the Indian Constitution that defines this relationship been abrogated are removed? The answer is no.

What does he mean when Union Home Minister Amit Shah during the course of debate on the state reorganisation Bill leading to bifurcation of Jammu and Kashmir, said that the statehood could be restored to J&K once normalcy was established. The point was more forcibly buttressed by Prime Minister, Narendra Modi during his 40-minute address to the nation counting the benefits accruing out of removal of Jammu and Kashmir’s special status.

Restoration of statehood to Jammu and Kashmir, while UT status for Ladakh to remain, was Modi’s thrust aimed at allaying fears in Jammu region on having been demoted to UT status as against the separate state for the area which BJP and its erstwhile avtar Jan Sangh backed by RSS had been promising over the decades.

However, Shah admitted this goal might not be achieved soon. Was he referring to the protracted battle against militancy in Kashmir a long drawn battle? It seems so but the clarity on his certainly not off-the-cuff observation which was missed by many, is still to come.

The state has been divided into two Union Territories (UTs) in a superbly planned and meticulously implemented operation. Ladakh is independently a UT whereas Jammu and Kashmir regions have been clubbed together in the form of another centrally governed territory. It is another matter that those (read the state of J&K) whose fate was to be decided, were  not taken into confidence.

Nevertheless, it is definitely a politically deft move but has a controversial side to it. How come the implementation of the move came when those affected by it, positively or negatively, smarted under curfew. With all communications links snapped in Kashmir Valley and heavy deployment of forces prevented Kashmiris even from peeping out, Jammu under curfew with communication links on, it takes some sheen out of the perceived populist move- divesting the state of its special status. Firstly no consultation with the stake-holders including Kashmiris, Jammuites and Ladakhis and secondly restrictions on their movement and speaking, some charges would certainly be in the air regarding arbitrariness of the process.

What also makes the entire exercise unique is the fact that it is for the first time after the linguistic reorganisation of states in 1956 that a state has been converted into a UT. The grant of UT status is as per the aspirations of Ladakhis but in the case of Jammu and Kashmir particularly Jammu many brows are already being raised though the idea is still to fully sink and euphoria is still at its peak.

Did Modi and Shah duo keep a safety valve option open when he made a passing remark about option of reverting to statehood still open? Nothing can be said on this with any surety but one thing is clear that alongside dynamism behind this courageous decision there certainly is an air of caution. And rightly too! So, what does that mean? It is apparent that the Centre is ready for a long haul against militancy and at the same time tries and pursues all other processes- political as well as administrative.

The partial abrogation of Article 370 which automatically led to the controversial  Article 35A which had resulted from a Presidential order of 1954 getting eliminated, has given long overdue relief to West Pakistani refugees who had all along been fighting for their right to education, property, government jobs and above all right to contest and vote in the state elections, and removed gender bias that flowed through the handle of 35A.

Why the term partial abrogation of Article 370 or has Article 370 been scrapped? What is the status of Article 35A now?

These are significant questions enveloped in the heap of legal and constitutional technicalities but seeking a reply from the public point of view would be right in order here.

According to Faizan Mustafa a noted Constitutional law expert, the Constitution (Application of Jammu and Kashmir) order, 2019 issued by President, Ram Nath Kovind in exercise of his powers conferred by Clause (1) of Article 370 of the Constitution, has not abrogated Article 370. While remains intact in the statute book but it has been used to withdraw the special status of Jammu and Kashmir. The Presidential order in turn has extended all provisions of the Indian Constitution to Jammu and Kashmir. This according to him is the first time that Article 370 has been used to amend Article 367 ( which deals with interpretations) with reference to Jammu and Kashmir, and this amendment then in turn has been used to amend Article 370 itself.

Article 35A flows from the spirit of Article 370, and does not appear in the main text of the Constitution but appears in Appendix 1. It had empowered the J &K Legislature, in the old scheme of things also to define who permanent residents of the state could be, and their special rights and privileges. Since the new Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir, and Ladakh, it all but stands withdrawn.

Did it, the reorganisation of state, require a Constitutional amendment to be passed by two thirds majority in Parliament? That is the normal perception about such cases. However, Article 3 of the Constitution of India empowers the Parliament to amend  the Constitution by a simple majority to change the boundaries of a state, and to form a new state.

Is Article 370 temporary in nature? This question has been in the centre of debate ever since this Constitutional provision came into being. The debate has gained more currency in recent times and even Home Minister, Amit Shah had vociferously referred to “temporary” nature of Article 370 in Parliament.

In the Constitutional scheme of things Article 370 is the second Article of Part XXI of the Constitution which has been described as “Temporary, Transitional and Special Provisions. There is more than one view on this.  It is temporary in nature as the Constituent Assembly of J &K was conferred the right to modify/delete/retain it which decided to retain it.

Another view was that it is temporary in nature until a plebiscite  has been held to know the choice of the people of the state. It was only last year that the Government in reply to a question in Parliament had said that there was no proposal to remove Article 370.

However, the Supreme Court had in April 2018, stated that the word “temporary” in the head-note notwithstanding, Article 370 was not a temporary provision. In another observation made in SBI versus Zafar Ullah Nehru case in 2016, the Apex Court had observed that J&K has a special status, and that Article 370 was not temporary.

In this backdrop there are chances that the entire issue concerning the nature of Article 370 and actions taken thereof to reorganise J & K could invoke a legal scrutiny. As it is some cases related to this and Article 35 A are already being heard by the Supreme Court.

The Presidential order can certainly be challenged with respect to the fact that Article 370 gave sweeping powers to the President. It is another matter that a review of the entire issue by a Constitution Bench of the Court though a necessity but would be a time consuming process.

Nevertheless, decision to divest J & K of special status and reorganising the state in a single stroke of pen is definitely a courageous decision. It would be naive to adjudge that it has done justice to all sections and regions of the state. However, the clever ploy of the Government to undertake this exercise under the cover of fighting and eradicating militancy does provide a safety valve for the time being.

Notwithstanding the legal options, it would be imperative upon the Central Government and the BJP leadership to ensure that communication channel with mainline politicians particularly in Kashmir Valley were not broken in order to ensure that the new provisions could be implemented and sustained. After all, it is the political leadership who have to act between the Government and the people.

It is significant to understand as to what is the backdrop to which Narendra Modi Government moved to dilute the controversial Article 370 of the Constitution rendering the special status of Jammu and Kashmir infructuous. And how people of its three regions Jammu, Kashmir and Ladakh viewed the developments?

 

The scene on ground had been building up for the past over a fortnight, prior to Government taking enacting the legislation concerned in Parliament, with security forces gradually tightening their hold that was finally unfolded with Government announcing movement of additional security forces to the state since having lost its status and even a region.

The facade to final act performed by Home Minister  Shah in Rajya Sabha where he moved the statutory resolution changing status of India’s most controversial state, was the since suspended Shri Amarnath Yatra. It all began with Centre and the State Administration deciding to suspend the yatra on the pretext that there was a serious threat by Pakistan backed terrorists to disturb the pilgrimage. The pilgrims alongside tourists staying in hotels of Jammu and Srinagar were asked to leave immediately.

Although the plan beautifully worked on ground but left no one in doubt that a serious threat was the reason behind unprecedented step of stalling the yatra. Since it involved the issue of security no one raised a finger and no one had the inkling that Article 370 was about to be consigned to the dustbin though in part. It still exists for technical reasons as abrogating it altogether needed a Constitutional Amendment which ostensibly the Government wanted to avoid or for other constitutional and legal reasons.

An air of uncertainty had been gradually gripping the state over the days which peaked after suspension of the Amarnath Yatra. People both in the state particularly in Kashmir Valley had been gearing up to face a longish stint of curfew and accordingly were stocking essentials. Although used to such situations, long periods of protests and curfews, during the last three decades they had not fathomed abrogation of Article 370. There was an air of fear and uncertainty in Kashmir which further gripped after Shah made historic declaration regarding the Article in Rajya Sabha.

In Jammu, the winter capital of the state, there was a sense of uncertainty but more than fear people were gripped with scepticism. After all a strong section of the society in this area has been votary of abrogation of Article 370. Sudden imposition of curfew as they woke up on the morning of August 5, took people by surprise with a fear gripping that a war or some kind of action with Pakistan was on the cards.

The reality was still to dawn on them that the development has left Jammu dismembered and demoted as it along with Kashmir has lost the status of a state though the Assembly will remain. Will the initial euphoria on dilution or partial abrogation of Article 370 give way to despair on account of loss of political status or the Sangh parivar reneging on its decades old promised held out for a separate state for Jammu region?

There is a feeling of insecurity and uncertainty gripping Kashmir Valley which is under strict curfew conditions ever since the move to dilute Article 370 was initiated in Parliament. The mainline political leaders such as National Conference’s Farooq Abdullah and Omar Abdullah, People’s Democratic Party chief Mehbooba Mufti and Peoples Confrerence’s Sajad Lone, a former ally in the BJP-PDP participated state government, were put under house arrest. And after that Congress veteran and former J & K chief minister and presently Leader of the Opposition in Rajya Sabha, Ghulam Nabi Azad was sent back from Srinagar airport without interacting with his party-men.

Ladakh under the new dispensation will be a separate Union Territory without an Assembly. Initial reaction emanating from Leh region of Ladakh was of happiness as UT has been their long standing demand. However, the issue is still to sink in the adjoining Kargil district which has a different religious identity. Kargil, of late has been witnessing protests with administration acting swiftly to impose restrictions.

The overall scenario would emerge as details of the Centre’s proposals unfold. In the overall context Jammu and Kashmir is a loser in terms of political power whereas the nation is the winner.

However, one thing is clear that the state of Jammu and Kashmir will no more exist as it is today after partially abrogation of Article 370. It has left the state divided into two Union Territories thereby snapping special protection that the Constitution had provided to the state at the time of its accession.

The three regions of the state namely Jammu, Kashmir and Ladakh were distinct in terms of culture, language, culinary habits and religion. Despite problems due to distinct characterisations and complaints of regional bias they had gradually learnt to pull along. There were demands of state’s reorganisations but perhaps not the hurried manner in which it has been done ahead of the state Assembly elections.

The partial abrogation of Article 370 means differently to people of three regions of the state. The prime question or the premise taken by the ruling dispensation is that abrogation of Article 370 will resolve all problems including that of militancy as it would fully integrate the state with the Union of India and ensure its all round economic development.

There is no doubt that steps for further integration of J&K with rest of the country were needed. But it needed to be done keeping in view the complex composition of the state as all the three regions are heterogeneous in religious and caste characters. After all, a perquisite should have been to first ensure total integration through a greater understanding of diverse religious and caste groups through consultations at different levels.

Like the Buddhist majority Leh and Shia majority Kargil districts of Ladakh, Jammu region is too of heterogeneous character with Hindus and Muslims dominating the scene in different regions of the state. The abrogation of Article 370 is seen by the Muslim majority of the state from the prism of changing their majority character. There is a difference of perception between the thinking of Muslims of Jammu region and that of Kashmir Valley but their views regarding Article 370 are similar. It would be naive to save that the entire Hindu population of the state favoured its abrogation without assurance of their interests being protected as to some extend was done under Article 370. Their fears should have been addressed instead of presenting before them a fate accompli.

The Leh segment was all for a Union Territory status whereas Kargil has been opposed to it all through.  It will be interesting to see how the two segments converge or not on the Centre’s decision to grant UT status to them.

The predominantly Muslim majority Kashmir Valley has been facing militancy for the past over three decades to a great extent sponsored by Pakistan but there is a local element. There is a fear of separatist forces exploiting sentiments of the local population on sudden abrogation of Article 370. It would have been in the fitness of things had the Centre and the state governments opened some channels of communication with people so that they could see merits of this move. This would have helped in isolating them from the separatist forces.

There is an international dimension to it that cannot be ignored. This pertains more to part of Jammu and Kashmir under illegal control of Pakistan than anything else. The entire thing has been linked to Jammu and Kashmir as it existed in 1948. More importantly, there is a unanimous resolution passed by Parliament of India in 1994 declaring entire Jammu and Kashmir as integral part of India.

It is still to be seen or at least the Government has not explained as to how it would deal with this international dimension. And more so with Pakistan which is the prime trouble creator in Jammu and Kashmir.

As it is a frustrated Pakistan has already started upping ante. The recall of its High Commissioner, or not sending the new appointee for the job, suspending economic ties, stopping Samjautha Express bilateral train between the two countries and even putting some restrictions on air space, are some of the steps immediately taken by Islamabad.

There is no doubt that Jammu and Kashmir is an internal issue of India and that the country has all along been ruling out any third party intervention either on Jammu and Kashmir or in resolving its bilateral issues with Pakistan. But we may or may not like but certain cross-connections have remained with us as baggage of history or as a result of the unsavoury incidents of 1947 partition.

The Pakistan Occupied Kashmir and India’s emphatic claim to it is one such issue. The 1994 unanimous resolution of Parliament of India that PoK was an integral part of India has become the corner stone. Will diluting Article 370 in this fashion give Pakistan a handle to strike back and to score some brownie points on Jammu and Kashmir?