Lockdown in Kashmir: The legal angle

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On August 5, the Centre decided to end the special status given to the state of Jammu and Kashmir (J&K) under Article 370. In addition, J&K also lost its statehood and was re-organised into two Union Territories: Ladakh and J&K.

Union Minister for Home Affairs, Shri Amit Shah, introduced two bills and two resolutions regarding Jammu & Kashmir (J&K) in Lok Sabha today. These are as follows:

  • Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} – issued by President of India to supersede the 1954 order related to Article 370.
  • Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}
  • Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}
  • Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019 {Home Minister withdrew the Bill from both Houses as the provisions of this act would become applicable to J&K once article 370 gets repealed and the laws of Union of India become applicable there}

Article 370(3) provides President of India has the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K.

President of India signed the Constitution Order 2019 yesterday regarding Article 370(1), under which all the provision under article 4 would be applicable to J&K. J&K constituent assembly would be read as J&K Legislative Assembly.

Similar changes to article 370 have been done in the past as well. Now since President’s rule is in force in the state, implementation of article 370 would cease to exist when President of India issues the notification in this regard, after this House passes the resolution.

International Outcry against Kashmir issue

India has managed to convince the world about Kashmir, for now. But there is intense scrutiny and there is zero room for slip-up. India has placed the problems in Kashmir within the global context of international terrorism, whose epicenter is Pakistan.

Pakistan is placing the Kashmir issue within a manufactured context of “Islamophobia” and “injustice to Muslims”. Houston, we have a problem. India set a blistering diplomatic pace in the past month, as it went out of its way to convince partners and sceptics about its August 5 decision to de-operationalize Article 370 and reorganise Jammu & Kashmir into two Union territories.

From the UN Security Council to the UN General Assembly via the UN Human Rights Council, India pulled out all the stops to build diplomatic capital behind what is arguably the toughest political decision taken. By and large (not counting China and Pakistan), India has succeeded.

On 10 September 2019, over fifty countries from across the world issued a joint statement at the Human Rights Council, Geneva, expressing their deep concern at the prevailing human rights situation in the Indian Occupied Jammu & Kashmir (IOJ&K).

This follows similar concerns expressed by the UN Secretary-General, Antonio Guterres; UN High Commissioner for Human Rights, Michelle Bachelet; over half a dozen UN Special Procedures and Rapporteurs; Organization of Islamic Cooperation and its Independent Permanent Human Rights Commission; civil society organizations; human rights watchdogs; conscientious members of parliament the world over; and last but not the least, the international media.

Myths And Facts of the Lockdown

People of Jammu and Kashmir have been struggling for their right of self-determination from more than six decades. The issue of Kashmir started just after India’s independence and the birth of Pakistan in 1947.

At that time there were around 560 princely states under British India and Kashmir was one of them. The delay in deciding Kashmir’s future by Maharaja Hari Singh – the last king of independent Kashmir – after the British left was the root cause of Kashmir conflict.

The tribal invasion caused by raiders from Pakistan made the Maharaja feel insecure and he decided to seek help from India. India’s viceroy Mountbatten promised him militarily help and in return Maharaja signed the “Letter of Instrument of Accession to India”, which stands controversial ever since. And with that Instrument of Accession, the Kashmir dispute has stared into the faces of the two nuclear neighbors for more than six decades now.

There are have been instances of violence, stone pelting, pellet injuries but nothing of the sort that Kashmir has not seen before. Obviously, things are not normal and that’s the reason why there is a security lockdown and a communication blackout. The snapped internet and phone lines are being justified by the administration by stating it has helped in checking violence unlike in the past.

While the authorities warn of all sort of misinformation that may be spread to exploit the situation and trigger unrest, the all-is-well attitude is adding to the bitterness among the citizens.

Justification given by the Government

Present in part XXI of the Indian Constitution which comprises of Temporary, Transitional and Special Provisions with rest to various states of India. Forms the basis of the “Special Status” of J&K.

Provides for a separate Constitution of J&K. Limits the Union Parliament’s power to make laws for J&K to those subjects mentioned in the Instrument of Accession (defense, foreign affairs, and communications) and others as and when declared by the Presidential Orders with the concurrence of the Government of the State.

Specified the mechanism by which the Article shall cease to be operative. That is, on the recommendation of the Constituent Assembly of the State before the President issues such a notification. However, this provision has been amended by the Constitution (Application to Jammu and Kashmir) Order, 2019.

Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India. It has been described as a tunnel through which the Constitution is applied to J&K.

India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status. By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments.

However, abrogating the article altogether may threaten the peace in the state which is already a hotspot of conflicts and militancy. It will completely change the relationship between the state and the rest of India. It will also clear the path for abrogating Article 35A which would allow Indian citizens to purchase land and settle permanently in J&K. Thus, the move is bound to have a significant impact on the demography, culture, and politics of J&K.

Article-370 can be abrogated by an amendment to the Constitution of India as contemplated by Article-368, the only requirement being the non-destructive nature of the amendment as regards Basic Structure of the Constitution.

But the question is not how abrogation can be effected, it’s whether abrogation can be effected or not. The answer is not in the affirmative. Although, the President of India had been conferred with the power to suspend or modify Article-370 by issuing a notification, but for that purpose the recommendation of the constituent assembly of J&K shall be necessary. Since the constituent assembly no longer exists, there is no question of existence of such power.

As far as Article-368 is concerned, it is required that the amendment be extended by a Presidential order under Article-370(1) which again involves concurrence of or consultation with the State Government.

The above referred analysis leads to the inference that its still not clarified that the amendment so extended would be effective or not. The absolute power as regards relationship between Article-370, Union of India and State affairs rests with the State Government. And in case of a disagreement between the State Government and Union of India on the issue of abrogation, which is indispensable, the outcome would be the endless existence of Article-370.

Modi argued in his speech days after the decision that Article 370 “did not give anything except separatism, corruption, terrorism, and family rule. Pakistan used Article 370 as a tool to spread terrorism.” 

Implications and Public Reaction

Kashmir will no longer have a separate constitution but will have to abide by the Indian constitution much like any other state.

All Indian laws will be automatically applicable to Kashmiris, and people from outside the state will be able to buy property there. The government says this will bring development to the region “I want to tell the people of Jammu and Kashmir what damage Articles 370 and 35A did to the state,” Mr. Shah told parliament.

“It’s because of these sections that democracy was never fully implemented, corruption increased in the state, that no development could take place.” The government is also moving to break up the state into two smaller, federally administered territories. One region will combine Muslim-majority Kashmir and Hindu-majority Jammu. The other is Buddhist-majority Ladakh, which is culturally and historically close to Tibet.

P Chidambaram, a senior leader in the opposition Congress Party described the decision as a “catastrophic step” and warned in the parliament that it could have serious consequences.

“You may think you have scored a victory, but you are wrong and history will prove you to be wrong. Future generations will realize what a grave mistake this house is making today,” he said.

Sure other states exclude or restrict buying land for instance, but to deny or restrict to others, a list of rights based on how long your ancestors were settled in the state predicates on a position of being another nation. Countries deal with other countries in this manner, not provinces within a country.

Yes, sub-nationalism rears its head in India with the Naga secessionist movement, Dravid Nadu or the Khalistan movement, but the level prevalent in Kashmir is taking that to its limit. Instead of having its own flag, it should have India’s.

Instead of having Kashmiri citizenship, there must be single Indian citizenship and instead of the Constitution of Jammu and Kashmir, the one we gave unto ourselves should apply, warts and all, to our Kashmiri brothers and sisters.

Conclusion: Way forward

The need of the hour is to devise a logistic interpretation of the relevant clauses to the article, keeping in mind the intention of the framers of the constitution.

By creating a provision for amendment, its framers never intended to bestow the operation of Constitution with absolute rigidity but to provide for a bit of flexibility to keep pace with the ever changing needs of the society and to serve the ends of justice.

Amendment of Article-370, as per the present circumstances is a myth as of now but this situation can be easily dealt with using logistic approach and can be very diplomatically modified to a reality.

-This article is brought to you in collaboration with Arti Chauhan from School of Law, Galgotias University.

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