Resolving the Kashmir conundrum: Final nail in the coffin?

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Origin of Kashmir conflict

After Indian independence in 1947 J&K like other princely states was given an option to join either of the countries of India or Pakistan. J&K signed a standstill agreement with Pakistan. There was already an internal dispute in the state arising out of Hindu ruler ruling over Muslim majority. However, circumstances further deteriorated when Pathan tribesman from Pakistan attacked Kashmir, compelling Maharaja Hari Singh to sign the Instrument of Accession (IOA), acceding the 75% majority Muslim region to the Indian Union.

The first war over Kashmir broke out in 1947 when both India and Pak refused to withdraw their armies in the state thus, rendering a plebiscite impossible. Later in 1949, with the UNSC intervention, Indian and Pakistani forces agreed to ceasefire. India left in control of 75% of the valley, as well as Jammu and Ladakh; while Pakistan was given control of what Pakistan calls “Azad” Kashmir and India calls as Pakistan occupied Kashmir or “Ghulam” Kashmir.

An intriguing question that triggers our mental faculty is that at the time when Sardar Patel successfully integrated the 565 princely states of India, why wasn’t the same done in case of J&K? Sheikh Abdullah and other Muslims in J&K were against the rule of Maharaja in J&K since the implementation of the Treaty of Amritsar in 1847.

Baba sahib Ambedkar, who was initially approached by Sheikh Abdullah in 1949 for drafting article 370, he refused the offer with outmost disdain and said “You wish India should protect your borders, she should build roads in your area, she should supply your food grains, and Kashmir should get equal status as India. But the Government of India should have only limited powers, and Indian people should have no rights in Kashmir.

To give consent to this proposal, would be a treacherous thing against the interests of India and me, as the Law Minister of India, will never do it.” It was Pt. Nehru who appointed N. Gopalaswamy Ayyangar to draft Article 370 and to get it passed by the constituent assembly. Later when this draft of Article 370 was presented before the constituent assembly it was straightaway rejected.

When Nehru realised that it wouldn’t be possible to get this draft approved he again resorted to Patel who finally acceded to Nehru’s request and took the responsibility to get the draft approved despite having contrary views on the issue. Patel did succeed in convincing the assembly and so in 1950 the Constitution of India came into force the with article 370 enshrined in its fabric.

In 1951, first elections were held across states of independent India including J&K. Sheikh Abdullah got elected as the PM of J&K. 1953 saw major shift in power in J&K as Sheikh was arrested for anti-national activities and Bakshi Ghulam was appointed as the new prime minister of Kashmir. He signed a new Instrument of Accession (IOA) treaty formally with India.

In 1954 presidential orders extended several provisions of the Indian constitution to J&K’s constitution including 35-A inserted using the Constitution (Application to Jammu and Kashmir) Order, 1954, that would come in ambit of Article 370. Later in 1956 the State Constituent Assembly adopted a constitution for itself declaring J&K as integral part of the Indian Union. Following the elections in 1957 the constituent assembly was dissolved forming a new legislative assembly. But it was not the end of the problem instead a ground was set for the continuous contentions and conflicts in the coming years.

Current developments in Kashmir: Art 370

Since the state of J&K became an integral part of sovereign India (as stated in Article 1 of Constitution of India), there have been numerous modifications in the article 370 and 35-A. From 1956 to 2019 many provision of the Indian constitution has been extended to the state legislature of J&K.

Art 370 of Indian constitution grants certain special privileges to the state of Jammu and Kashmir: –

  • duration of the state’s Assembly is six years, not five like the rest of India;
  • it has a separate flag; Indian citizens cannot buy property there;
  • the Indian Parliament has only limited reach in J&K and only Defence, External affairs, Communication and the currency;
  • the state of J&K follows Ranbir Penal Code in place of IPC, no provision of RTI, RTE or CAG and other provisions incorporated in 35-A.”

 The seemingly sudden move by Union government to scrap off Art 370 was meticulously planned and researched. The legalities that were required to remove an article could not have been done overnight. Proper and planned homework was done beforehand by legal experts/officers of the government.

Union government was ready and waiting for the right opportunity to proceed with their plan; prepared with measures to mitigate any possible unrest arising thereafter. All the odds turned out to be in favour of ruling party as

  • There was no legislative assembly present in the state owing to the Presidents rule continuing from June 2018.
  • The ruling party had significant number of seats in both the houses and underpinning of other parties, who supported this resolution, led to uninhibited passing of this bill. (THE JAMMU AND KASHMIR REORGANISATION BILL, 2019)
  • Approval of the Bill from both the houses reinforced its legality.

Analysing the procedure for removal of Art 370

Removal of article 370 was executed through the Presidential Order (C.O. 272), 2019. The article used to dilute or scrap 370 was article 370(3) which states that, president has the power to declare this article (Art 370) ineffective or that the article may operate with specified modifications and exceptions, through public notification. This article empowers president to remove or modify any provision of the art 370 but with the recommendation of the constituent assembly.

 Article 370(1)(d), moots an imperative point, “Notwithstanding anything contained in this Constitution, such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.”

Although it seems powers rest in hands of president but the holistic approach tells us that real powers is vested with the constituent assembly. So for the abrogation of 370 the first and foremost requirement was the presence Constituent assembly which ceased to exist in 1957. So the question that arose was if 370 has thus become permanent to which an answer is the opening heading of 370 i.e.-Temporary provisions with respect to the State of Jammu and Kashmir.

The expression ‘temporary’ indicates the intent of the framers of our constitution, that is article 370 was never meant to exist for so long in the first place.  Although recently in 2018 the Indian Supreme Court further stated that ‘Article 370 had acquired permanent status, making its abolition almost impossible.’ And now comes in picture an entirely new article i.e. Article 367. Article 367 had 3 clauses that talks about the interpretation of constitution.

The C.O. 272 added an additional 4th clause with 4 sub clauses that included article 367(4)(c) stating that the references to the Government of Jammu and Kashmir shall be read and understood as references to the Governor of Jammu and Kashmir. Additionally, Article 367(4)(d) stipulates that in proviso to clause (3) of Article 370, the expression ‘Constituent Assembly of the State’ referred to in clause (2) shall inferred as ‘legislative Assembly of the State’.

One important fact to be kept in mind is that the state of J&K has been under President’s rule for around a year. There is no state government or legislative assembly in J&K. So very cleverly the powers that vested in hand of state government were put in hands of the governor using 367(4)(c) and (d). After this amendment the road ahead was free of predicaments (as far as the constitutionality is considered).

In other words, the Presidential powers in article 370(1)(d) were used, unhampered by the need of either concurrence of state government or the recommendation of the constituent assembly, to abrogate article 370 using the clause (3) of 370. In next step Statutory regulation was moved by Home Minister Amit Shah in Rajya Sabha that recommended the President to abrogate Article 370 and also included the reorganisation bill 2019 which aimed at bifurcating the state into two union territories of Ladakh (without legislature) and Jammu and Kashmir (with legislature).

So with the abrogation of Article 370 Article 35-A too ceased to exist as it was made through (presidential order) drawing its authority from 370. Referring to a J&K High Court judgement of 2002 which ruled that ‘Jammu and Kashmir women who marry non-permanent residents will not lose their rights in their ancestral properties, be devoid of their right to work, education, inheritance or even adoption.’ This decision was taken repealing a part of 35-A referred to as Permanent Residents Law which barred a woman (belonging to the state) from any property rights if she marries a person from outside the state.

The provision also extends to the children of such women as they do not have any succession rights over the property. Given the ‘special status’ of J&K it ought to have brought prosperity in the state as compared to rest of the country in terms of development, employment, low poverty etc. Unfortunately, the rhetoric seems to have failed to ensue changes. Unemployment is pushing the youth towards unlawful activities, stone pelting on army; had they been not poor, employed, educated, situation would have been at least some good.

Now when all this is done, we need to wait to see how this issue turns out. People have already challenged the scraping of Article 370 in Supreme Court of India and court proceedings concerning this issue will further enhance our wisdom about the constitution opening new doors of legal possibilities. This is the beauty of democracy and in the country like India where one gets ample opportunity to question the laws and their legalities with the presence of an independent supreme law institution.

-This article is brought to you in collaboration with Namrata Pal from Dr. Ram Manohar Lohiya National Law University, Lucknow.

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