J&K’s Article 370- A Case study

As we all know, Article 370 is not just an article in the Constitution of India, it denotes the special status of the state and its importance lies in the fact that it is through this article, the state of J&K integrates with India, after the Instrument of Accession was signed between the Maharaja of the State Hari Singh and Mountbatten of Burma, Governor General of India on 26th day of October, 1947 and has perpetual succession. The constitutional relationship between Jammu and Kashmir and the Indian Union has been the subject of a lot of discussions in recent times. This has reawakened the long-standing debate on the continued importance of Article 370. The provisions of Article 370 of the Constitution of India do not apply automatically to J&K. To apply constitutional provisions and amendments to the State, a presidential order has to be passed. This order requires the concurrence of the State government, where the subject matter does not relate to the subjects mentioned in the Instrument of Accession (defence, external affairs, and communications). For other cases, only consultation of the state is required.

Historical Background

Integration of J&K with India

Earlier, The State of Jammu and Kashmir was a princely state during 1846-1947. Even during the East India Company rule and during the rule of Britishers also. The princely state was created after the first ancient Sikh war when the East India Company had annexed the valley of Kashmir, Jammu, Ladakh, and Gilgit-Baltistan from the Sikhs as war indemnity, then sold the said regions to the Raja of Jammu, Gulab Singh, for consideration of 75 lakhs[1]. Then for a long time, India was under British rule. In the year 1947, the British rule finally came to an end after the long term efforts and struggle of various freedom fighters. It resulted into the partition of British Indian empire into Union of India and Dominion of Pakistan. After the partition, both the countries had agreed that the princes of ruling states would be given the option to opt for either India or Pakistan and in some special cases, be independent. The State of Jammu and Kashmir was one of them. In 1947, the population of Kashmir was in majority of Muslims i.e approx. 77% and 20% Hindus. So the Maharaja of the state Shri Hari Singh didn’t make any decision in a hurry and signed a ‘standstill’ agreement with Pakistan and continued trade, travel, communication and some other services with them[2]. A similar agreement was pending with India. In October 1947, Pashtuns from Pakistan’s North-West Frontier Province attacked Kashmir in order to frighten Hari Singh and thereby acceding the princely state. Then, the Maharaja in order to save his princely state from the attack asked for help from India. Lord Mountbatten, the last viceroy of British India and the then acting first Governor General of India, agreed to offer help on a condition that the state will accede to India. Then, the Maharaja signed the Instrument of Accession and then the Indian soldiers were airlifted to Kashmir and fought with them and drove them back. Some of the area comprising western and northern districts presently known as Azad Kashmir and Gilgit-Baltistan passed to the control of Pakistan, while the remaining territory stayed under Indian control and forming the state of Jammu and Kashmir[3]. Thus, this Instrument of Accession is the string that annexes Union of India with Jammu and Kashmir. And Article 370 in the Constitution of India is the key element which defines the relationship between the two. Thus, it is important to discuss the Instrument of Accession and its conditions alongwith Article 370 to have a better understanding of the historical background.

Special Status conferred on the State through Article 370

Kashmir was temporarily accepted into the Indian Union pending a free and impartial plebiscite. This was stated in a letter from the Governor General of India, Lord Mountbatten, to the Maharaja on 27 October 1947. In the letter of acceptance of the accession, Mountbatten clearly wrote that the State would only be incorporated into the Indian Union after a reference had been made to the individuals of Kashmir. In the last days of 1948, a ceasefire was concurred under UN support; nonetheless, since the plebiscite requested by the UN was never led, relations among India and Pakistan soured, and in the long run prompted two additional wars over Kashmir in 1965 and 1999. India has control of about a large portion of the territory of the previous regal province of Jammu and Kashmir; Pakistan controls 33% of the area, the Northern Regions, or commonly known as areas of Gilgit and Baltistan; and Pakistan Occupied Kashmir. As indicated by Reference book Britannica, “In spite of the fact that there was a Muslim majority in Kashmir before the 1947 parcel and its monetary, social, and geographic contiguity with the Muslim majority  zone of the Punjab (in Pakistan) could be convincingly illustrated, the political advancements during and after the segment brought about a division of the area. Pakistan was left with an area that, albeit essentially Muslim in character, was less populated, moderately difficult to reach, and economically underdeveloped. The Maharaja who was the Hindu king of a Muslim-majority state had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after tribesmen and Pakistan Army invaded the state, and India agreed to help only on the condition of accession. The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu and Kashmir on only defence, external affairs and communications.[4]

In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. In Clause 7, he said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.[5]” It is pertinent to mention here these conditions as enumerated in the Instrument of Accession.

Article 370 was inserted in the Constitution of India as a consequence of Instrument of accession, thereby empowering the Parliament of India to legislate into some of the matters. Article 370 was a protected acknowledgement of the conditions referenced in the Instrument of Accession and mirrored the contractual rights and obligations of the two parties. Article 370 is the second Article of Part XXI of India’s Constitution, which is titled “Temporary, Transitional and Special Provisions”. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir was given the right to modify/delete/retain it. The Constituent Assembly of Kashmir decided in its wisdom to retain it. The other view was that it was “temporary” until a plebiscite had been held to ascertain the wishes of the people of Jammu and Kashmir. “Article 3 of the Jammu and Kashmir constitution itself declares the state to be an integral part of India. In the preamble of the Jammu and Kashmir constitution, not only is there no claim to sovereignty like in the Constitution of India, there is, rather, a categorical acknowledgement that the object of the Jammu and Kashmir constitution is to further define the existing relationship of the state with the Union of India as its integral part thereof”. Integration thus was already complete.

Insertion of Article 35-A through Presidential Order, 1954 in Appendix I of the Constitution of India.

Article 35-A: It is an Article incorporated in the First Schedule annexed to the Constitution of India, giving the Legislature of J&K the right to decide who all are permanent residents of the state and confer some special rights and privileges on them in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.The article provides that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land. It was added into the Constitution of India in the year 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 was the result of 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the “state subjects” of Jammu and Kashmir.[6]

The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This arrangement allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of “state subjects” of Jammu and Kashmir. Therefore, Article 35-A was added to the Constitution as a proof of the special consideration the Indian government accorded to the “permanent residents” of Jammu and Kashmir.

Essentially, the administrative or parliamentary course was bypassed with the Presidential Order which fused Article 35A into the Constitution. Article 368 (I) of the Constitution enables just Parliament to amend the Constitution. Which makes one wonder whether this Presidential Order overwrote the Constitution?

Since Article 35A was never discussed and passed into law by Parliament, is it infructuous or invalid and void? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal versus The President of India talked about the President’s power under Article 370 to “amend” the Constitution. Despite the fact that the court sees that the President may change a current arrangement in the Constitution under Article 370, the judgment is quiet about whether the President can, without the Parliament’s learning, present another Article. This question accordingly stays open.

Similarly, the presidential order extended various provisions of the Indian Constitution to J&K. This order was made with the concurrence of the State government and also ratified by the State Constituent Assembly. After the J&K Constitution came into effect in 1957, the State Constituent Assembly was dissolved. Since then, more than 40 such orders have been made, through which most constitutional provisions have been extended to the State. The sheer number of such orders, as well as the circumstances under which they were made, have considerably eroded J&K’s special status under Article 370.[7]

Entrenchment Clause

            As per the Oxford Dictionary “Entrenchment” means “to apply additional legal safeguards”. In a legal sense it means the addition of provision which makes certain amendments either more difficult or cumbersome by way of procedure or checks and safeguards.[8]

            “An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party.”

  • An important question arises here that whether the provision in Article 370 which requires the recommendation of Constituent Assembly of the State necessary before the President may, by Public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify, is an Entrenchment Clause.
  • Another important question is that whether Clause 7 of the Instrument of accession which prohibits from acceptance of any future Constitution of India or to accept it with the discretion of Maharaja is also an entrenchment clause or not.

In my opinion, they are entrenchment clauses because the purpose of adding the Provision requiring the recommendation of Constituent Assembly of the State before making any alteration or modification is an additional legal safeguard and thereby making the amendment procedure difficult.

Also, the clause in Instrument of Accession is an Entrenchment clause as it prohibits from accepting any future constitution and condition requiring the acceptance of Maharaja makes the procedure cumbersome.

Various judgements of Supreme Court and High Court relating to the special status.

High Court Judgements

  1. In Kumari Vijayalakshmi Jha vs Union Of India (2017), Delhi High Court rejected a petition that argued that Article 370 was temporary, and that its continuation was a fraud on the Constitution.[9]
  2. A Division Bench of the Jammu and Kashmir High Court described Article 370 as “a permanent provision of the Constitution” and Article 35A as one “giving protection to existing laws.”

Hearing the petition of Ashok Kumar and others Versus State of J&K and others Justices Hasnain Masoodi and Janak Raj Kotwal held: “Article  370 is the only provision of the Constitution that applies to the State, on its own. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.” The double Bench of the court observed, “The Constituent Assembly [of 1957] is conferred power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications. [However] The Constituent Assembly did not make such a recommendation before its dissolution on January 25, 1957.”

“Resultantly, Article 370, notwithstanding its title ‘temporary provision,’ is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”

The court stressed that “J&K while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States that signed Instrument of Accession with India.”[10]

Supreme Court Judgements:-

  1. In April 2018, the Supreme Court said that the word “temporary” in the headnote notwithstanding, Article 370 was not temporary. [11]
  2. In Santosh Kumar (2017), the apex court said that due to historical reasons, Jammu and Kashmir had a special status.[12]
  • The Supreme Court in SBI v Zaffar Ullah Nehru (2016) observed that the federal structure of the Constitution is reflected in Part XXI. The court also said that J&K has a special status and that Article 370 was not temporary. The court referred to Article 369 of Part XXI that specifically mentions the period of five years; no time limit is mentioned in Article 370. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.[13]
  1. In Prem Nath Kaul (1959), a five-judge Bench of the Supreme Court observed that Article 370(2) shows that the continuance of the exercise of powers conferred on Parliament and the President by the relevant temporary provisions of Article 370(1) is made conditional on the final approval of the Constituent Assembly of Jammu and Kashmir.[14]
  2. In Sampat Prakash (1968), the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the five-judge Bench said.[15]

Revocation of Special Status of J&K

Presidential Order, 2019 revoking special status accorded to J&K

The Constitution (Application to Jammu and Kashmir) Order, 2019 issued by President Ram Nath Kovind “in the exercise of the powers conferred to him by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.

The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be understood as references to the Governor of the State, and “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”.

This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.

Article 35 A branches from Article 370, and was inserted through a Presidential Order in 1954. Article 35A is not there in the main body of the Indian Constitution. Article 35 is followed by Article 36 but it is there in Appendix I. Article 35A gives the power to the legislature of Jammu and Kashmir to define the permanent residents of the state, and their special rights and privileges.

Presidential Order, 2019 has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. Therefore, the alleged discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A. This provision is currently under challenge in the Supreme Court on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. However, Presidential Order of 2019, too has amended Article 367 without following the amending process which is also a substantial question.[16]

Circumstances in which special status of J&K has eroded         

The unprecedented security sending, detainment of political pioneers in their homes, and the snapping of communication connections recommend the administration foresees mass dissents. A decision to alter the very basis of accession of Jammu and Kashmir has been taken without discussion or negotiation, and when the state does not have a prominently chosen government. The Presidential Order expresses that express government’s concurrence has been taken; it most likely implies the concurrence of the Governor, who is a nominee of the central government. There is no Legislative Assembly in the State currently, no elected Government, no representation of the people presently and the Presidential Order was passed at this time.

Current Scenario of J&K

There is a lockdown in Kashmir right now, with around fifty thousand additional paramilitary troops deployed to the union territory to prevent unrest. Communication networks have been crippled so as to mute anticipated adverse reactions of Kashmiris. The centrally-appointed authorities, in office since rule of the centre began over a year ago, have effectively evaluated that Kashmiris are liable to revolt after being deprived of the limited autonomy they enjoyed until now. This is particularly the situation as they were neither consulted on nor endorsed the political re-engineering of their relationship with the rest of India. Sensibly, the authorities have taken around five hundred mainstream political leaders and separatists into preventive detention, including three former chief ministers, who are being held incommunicado and without charge.[17]

The state has had an open run-in with international media, initially disputing its reporting on such incidents, but admitting later to one that involved around two thousand protestors at Soura, Srinagar. Those actions are indicative of the government’s security imperatives. Clearly, the government knew about a possible backlash within Kashmir. The manner in which the clampdown was organised indicates the government’s prior formulation of a realistic threat perception.

The government suspended a major pilgrimage of the Hindus, i.e the Amarnath Yatra, at the beginning of August, citing the threat of a terror plot to target Hindu pilgrims. It indicated to a burst of hostile Pakistani activity along the Line of Control (LoC), including an unsuccessful action in which five members of a Pakistani border action team were killed. That resulted in pilgrims, tourists and migrant workers leaving the then-state post haste, assisted by the government. To further control the information trickling out of the union territory, India increased the number of paramilitary troops in it. An infantry brigade had already been stationed there earlier. The increased strength of the security forces was over and above that already deployed in Kashmir for overseeing the national elections in early summer and for securing the pilgrimage. The build-up would suggest that India was well aware of the potential fall-out of its then-impending action in parliament.

The government’s caution is best evidenced by the fact that Mr Ajit Doval, the national security adviser, camped in Kashmir to oversee the security arrangements personally. Those arrangements have apparently succeeded, at least for the moment, since there has been no major incident with large scale loss of lives or injuries caused by pellet guns. That, however, could be the lull before the storm.

Effects of Revocation : Analyzing Pros and Cons
Benefits of Revocation

Central Government has underlined the need for development, advancement and ending the insurgency as purpose behind freeing Kashmir of its special status. It holds that the special status enabled the state to be constrained by corrupt political parties, prevented its political coordination with the remainder of India and enabled a radical assumption to multiply in it. The special status included a different constitution for the state, which has now been scrapped. The test of India’s achievement in Kashmir, thusly, would be in Kashmiris producing a passionate and political bond with the remainder of the nation and the level of effective improvement in the Union Territory. India is at risk to be surprised on both checks.

Two days after the parliament passed a resolution repealing special status to Jammu and Kashmir under Article 370 of the constitution and bill for parting the state into two Union Territories, Prime Minister Narendra Modi in a profoundly foreseen address to the country, set out the method of reasoning behind this noteworthy choice and explained on the outcomes of this move.

Takeaways from Narendra Modi’s address to the nation-

He said, “We have removed the provisions in Article 370 which acted as an obstacle to J&K and Ladakh’s development. The act of the Government will usher a new dawn in the region and help in development of the youth there.” [18]

Some of the benefits of the recent amendment as stated by Prime Minister Narendra Modi are as:-

  1. Rights were deprived to the people of Jammu and Kashmir and Ladakh. With the recent amendment of Article 370, the dreams of Sardar Vallabhbhai Patel, B.R. Ambedkar and Shyama Prasad Mookerjee have been fulfilled. A new era in Jammu and Kashmir has now started.
  2. Assembly elections will be held in Jammu and Kashmir. People will have a Chief Minister, MLAs and ministers. The representatives will be chosen by the people of J&K.

iii.        The Right to Vote was denied to the people who came to India after 1947 in Jammu and Kashmir. They had rights everywhere else, but not in the state of Jammu and Kashmir. With the recent amendment, their rights will be restored.

  1. Terrorism and violence in the Kashmir valley will be controlled.
  2. A plant named Solo, in Ladakh, which is a boon to those living in high altitudes, can be sold worldwide as it has vast medicinal properties.
  3. Laws are made for the whole country except for the State of J&K, but now J&K will also get the benefits of such progressive laws.
  4. The workers in J&K will now get the benefits for all employment schemes given by the government.

vii.       All post in J&K will be filled soon.

viii.      Schemes and projects will now be implemented on ground in Jammu and Kashmir and Ladakh.

  1. Large parts of Jammu and Kashmir was deprived of democratic practices and electoral culture which exists elsewhere in the country.
  2. IITs and IIMs will be there in the region of Jammu and Kashmir.
    xi. Government endeavours to give a conducive environment for tourists and the creative bodies( film & theatre) to engage with the state. The state can become the biggest tourist destination.

xii.       Centre’s decision will help sports and provide sporting talents with the much needed infrastructure to excel.

xiii.      There are numerous plants in Jammu and Kashmir which can be used for their therapeutic properties.

xiv.      Ladakh can become a solar powerhouse and play a vital role in the International Solar Alliance. There will be advancement in the UT without any kind of discrimination.

  1. Government is very positive that people will give a befitting reply to the separatists and their separatist tendencies.[19]

Disadvantages of Revocation:-

  1. Article 370, which came into power in 1952, enabled J&K to be an autonomous state since it constrained the Centre’s authority to just 4 matters i.e external affairs, defence, finance and communication. This arrangement permitted J&K to have a Sadar-e-Riyasat for Governor and PM instead of the main Chief Minister till 1965 as well as its very own flag and constitution. Because of this revocation, J&K will lose its autonomy and its own flag and constitution.
  2. Article 35A, which comes under Article 370, forbid non-permanent residents of J&K from permanently settling in the state, buying immovable property, acquiring land, applying for government jobs or any kind of scholarships, aids as well as other public welfare projects. The people of J&K will now lose these benefits associated with the permanent resident certificate.

iii.        Kashmir is India’s only Muslim majority state. “GOIs[20] intention is clear & sinister. They want to change the demography of the only Muslim majority state in India, disempower Muslims to the extent where they become second class citizens in their own state,” Mehbooba Mufti tweeted. She went as far as to call the abrogation “another partition along communal lines”.

  1. Legislative Assembly of J&K will no longer be in a position to clear any significant bills within the state now – the balance of power will shift in favour of the Union government. Significantly, in the absence of an elected government in the state the presidential order reportedly states that the state’s governor shall exercise the powers of the elected government.
  2. Due to Article 35A, no non-resident could get a government job in J&K. Companies and Organizations in the state were even compelled to contract only locals. The revoking of this rule intends to even the odds thereby reducing the employment rate of J&K residents.
  3. J&K’s special status had thus far shielded it from the applicability of Article 3, which provides for re-drawing state boundaries or the creation of a new state. The bifurcation of the state of Jammu and Kashmir into two Union Territories (UTs) – Ladakh and J&K – is hence related to the abrogation of Article 370.[21]

vii.       Most importantly, the current lockdown in Kashmir is the biggest disadvantage to the residents. Communication is prohibited. Internet Services are banned. Curfew is imposed in many areas and Section 144 prohibiting unlawful Assembly is there throughout. People are deprived of their basic human rights and fundamental rights as to freedom of movement, freedom of speech and expression.

Conclusion:-

The most significant feature of federalism in the United States was the compact between the 13 erstwhile British provinces that constituted themselves first into a confederation and after that into a federal polity under the nation’s 1791 constitution. India’s Supreme Court in State of West Bengal v. Union of India (1962) attached the highest importance to an “agreement or compact between states” as an essential characteristic of federalism. In SBI (2016), the apex court accepted the presence of this compact for Kashmir. Article 370 was an essential facet of India’s federalism because, like the compact in the United States, it governed the relationship of the Union with Jammu and Kashmir. The Supreme Court has held federalism to be part of the basic structure of India’s Constitution. So, the most important question which arises here is whether Article 370 which integrated the state of Jammu and Kashmir with India and is of federal characteristic, amounts to the basic structure of Constitution or not and thus, can be amended or not. This subject is pending before the Constitutional bench of Supreme Court to decide. Another important thing is that though the amendment may have various benefits and disadvantages, whether the procedure adopted for amendment i.e without any opinion of Legislative Assembly and considering Governor, the nominee of the Centre, with the powers of Legislature is constitutional or not. And even if it is Constitutional in terms of latter, whether it is in the spirit of Constitution or not. That is to say whether this amendment to 370 and bifurcation of State into two Union territories with the procedure adopted by the Parliament completely ignoring the will of the people, their actual representation, creating situation of lockdown and suppressing the voice of people, putting main political leaders including 3 Ex-Chief ministers under Preventive detention and other leaders is against the spirit of constitutionalism or not. The question thus remains open as the matter is pending before the Judiciary, which is the ultimate authority in deciding its validity and Constitutionality. Also, whether Judiciary can overturn such a big step thereby going against the opinion of the majority and against the decision of the current Government.

Ajay Kr. Sareen is pursuing his Masters in Law from the Rajiv Gandhi National University of Law. He can be reached at ajaykumarsareen@rgnul.ac.in