-written by Aditya Ramesh, Ranjan Manohar, Shreyas Ramani, Shantanu Hedaoo, Anusha Y G, Sreeram Warrier
Unless you’ve been living under a rock, the wave of red spreading across social media might have caught your eye. Everyone, right from news channels to TV show hosts, is talking about Kashmir. So what is the whole ruckus about? What is this Article 370 and Article 35A that has set fire to internet discussions? Let us break it down for you. To understand this, let’s go back to 1947, all the way to the origin of Article 370.
Back in the good old days when we finally managed to get the British off our backs, the Indian Independence Act came into force. The then princely states of India were given the option to either remain independent, join India, or join Pakistan. Though most Princely States signed an instrument of accession with India, the State of Jammu and Kashmir, then ruled by Maharaja Hari Singh, did not. He wanted the state to remain independent.
However, those feelings of Maharaja Hari Singh quickly went downhill when the state was attacked by an insurgent armed group from the newly-formed Pakistan, and was faced with an insufficient local army to defend themselves. The state asked India for help, leading to the subsequent signing of the accession of Jammu and Kashmir with India on the 27th of October 1947. This eventually led to the drafting of Article 370 by Sheikh Abdullah, the then prime minister of Jammu and Kashmir jointly appointed by Hari Singh and Jawaharlal Nehru. Accordingly, in 1949, Article 370 was introduced into the Indian Constitution. A point to be noted, however, was that the article was drafted in Part XXI of the Constitution, under a temporary provision. it could be declared void given a joint agreement between the Indian government and the state government of Jammu and Kashmir.
Plenty of long-winded words of the Constitution later, it is clear from the gist of the article that the state of Jammu and Kashmir enjoyed autonomy from the rest of the country, down to having its very own flag. Article 35A was added as a clause under this, giving the state the right to decide who its permanent residents are. The provision further gives special rights to residents in government jobs, property rights, and educational scholarships, among others, which were inaccessible by the citizens of the rest of the country. It also meant that the central government could not declare any sort of emergency over the state, except in the case of the war. External affairs, defense, and communication — these were the only three powers that resided with the government of India concerning Kashmir. But all of this became a matter of the past on the 5th of August 2019, when Jammu and Kashmir became two union territories — Jammu and Kashmir and Ladakh, with the Indian government revoked Article 370.
Which brings us to the ruckus about the removal of the article on the state. Like all things Kashmir, there are two groups on the opposite end of the spectrum, people who are strongly for the removal, and people who are strongly against it. The argument for the removal of the article begins from a legal perspective, claiming that the revoking of the article is nothing more than giving authority over India back to India. The existence of the article had not witnessed much development in the state but has seen the rise of corrupt politicians from political families. They use their special rights to annex power and wealth. It might even shock some that no anti-corruption agencies exist in the state due to this. There is thus a monopoly of political and economic power in the state since outsiders are not allowed. Furthermore, the article has been accused of being discriminatory on the basis of gender (by not granting rights to a woman married to a Kashmiri man, but not the same vice versa). It also withholds the fundamental rights of any immigrants to the state, leading to a sense of isolation from the rest of the country. All in all, the revoking of the article has been hailed as the harbinger of development of Jammu and Kashmir.
So if everything is all sunshine and rainbows, why are people against it? This majorly lies in the method of execution, and how what a lot of what the Indian government did was unconstitutional. India moved in around 8000 paramilitary troops on the 5th of August, 2019 claiming that there was a threat to the security of the nation. They then went on to put prominent state leaders like Mehbooba Mufti and Omar Abdullah under preventive detention. Even though technically the State Constituent assembly no longer exists, the closest body, the state legislature should have been consulted before any decision about Jammu and Kashmir’s future was declared. This is the way a democratic nation such as India is expected to function, and by using the power of the military to enforce laws on a state, the parliament now faces accusations of being ‘fascist’ in its approach. Even barring the fact that there were loopholes in the Constitution exploited to enable this move, the fact remains that the people of Jammu and Kashmir were not asked about what they wanted of their government and state. The emotion or purpose behind the law was being violated, which brings about a moral take to the entire situation.
It was a very abrupt decision that involved as few people as possible, and came as a surprise to the entire world, essentially leading to the accusation that the government has pushed democracy onto the state in the most un-democratic manner possible. The move is also feared to have pushed the Hindu nationalist agenda of the current Indian government, considering Kashmir is a Muslim majority state and now may no longer remain so.
What happens next? The short answer — we don’t know. The long term effects of the move cannot be quantified at this point of time, and we can only wait to find out. Maybe this move will pave the way for better economic development of the state, maybe it won’t. What if increased development is not the way for Jammu and Kashmir? With the right to own property granted for outsiders, will the rich culture and heritage of the state dwindle in the coming generations?
Moreover, with the hypothetical “improved infrastructure and development”, comes the question of pollution and maintenance, who will be responsible for that? Or is everyone overreacting, and the state will flourish as never seen before? But the most important question of them all — Jammu and Kashmir, being the pride and beauty of India, is in this unrest, this state of uncertainty; is this really what the nation and the residents want?
Legal mumbo-jumbo:
Read on if you are interested in knowing how exactly the Indian parliament exploited a loophole in the Constitution.
We have to start by understanding roughly the three statements in the Constitution which were used to do this operation- Article 370(1)(D), Article 370(3) and Article 367 of the Indian Constitution.
As aforementioned, for any law of the Constitution to apply to the state of J and K, a presidential order followed by the permission of the (now defunct) constituent assembly of J and K is required [370(1)(D)]. For any law under 370 to be changed, roughly the same procedure has to be followed [370(3)]. Now comes the fun bit.
Now that the constituent assembly doesn’t exist, the question arises- “Is Article 370 now permanent or invalid?”. This can be decided with the right to interpret the Constitution, which is provided to the parliament under the aforementioned Article 367 of the Constitution. So, by making use of 367, the parliament decided that since the constituent assembly ceases to exist, the legislative assembly will now have the right to decide. This amendment was done to 370(3) of the Constitution. In short, the parliament used Article 370(1)(D) to indirectly amend 370(3) not to require the constituent assembly anymore. After this, the road was clear to change J and K into two union territories, as they will be known in the future. Clever? Yes. Unconventional? Yes. Unconstitutional and underhanded? You decide.
