Article 370 And 35A Revoked: What Does It Mean For J&K?

The government is using a legal technicality to remove the autonomy that was otherwise given to the state of Jammu & Kashmir.

A soldier standing with a gun in Jammu and Kashmir

Union Home Minister Amit Shah introduced two resolutions and a Bill

in the Indian Parliament on Monday that would fundamentally alter the

relationship between India and the state of Jammu & Kashmir,

removing special provisions unique to the state and likely throwing its

politics into chaos.

The move came days after the Centre

began a troop build-up in the state and asked pilgrims, tourists and

students to return home and the morning after Kashmir’s mainstream

political leaders were put under house arrest and all communications and

gatherings were suspended.

Because of the extremely complicated legal history of Jammu &

Kashmir’s accession to India, the move had to involve jumping through

several procedural hoops. Here is what has happened:

  • The Presidential Order: The President of India has issued an order that removes some of the special provisions that have been extended to Jammu & Kashmir over the years. It also amends Article 367 of the Constitution, effectively giving more powers to the Delhi-picked Governor – rather than an elected government – to decide what happens next. Can a Presidential Order amend the Constitution? This question remains open.
  • The Article 370 resolution: Home Minister Amit Shah introduced two resolutions in Parliament.
    The first recommends that the President issue another order deleting all the clauses of Article 370 – which carves out Jammu & Kashmir’s special status in India – and replaces it with a line that effectively brings the state in line with the rest of India.
  • The Reorganisation: Shah’s second resolution does one complicated thing, that Sruthisagar Yamunan explains here. Because President’s Rule is in effect, the Parliament of India has the powers of the Jammu & Kashmir Assembly. Normally only state assemblies are expected to ratify a call for reorganisation of their own states, but with the power of President’s Rule, Shah is using Parliament in the character of the Jammu & Kashmir Assembly to ask for the state’s status to be changed.

    How? By splitting it into two: The new-look state would see the region of Ladakh become a Union Territory with no legislature. The regions of Jammu & Kashmir would also become a separate Union Territory, but with a legislature. Either way however, the democratic powers of both these regions would be curtailed, with more power vested in Delhi.

What does all of this mean?

In effect, the Bharatiya Janata Party-led government is using

a legal technicality – since Jammu & Kashmir is under President’s

Rule – to remove the autonomous powers that the state had within the

Indian Republic. And it is doing this without involving any

elected representatives from the state and in fact while some of the

most prominent leaders are under house arrest. It does not even need a

Constitutional Amendment, which would require the support of two thirds

of Parliament for it to pass, and is instead passing an ordinary Bill.

Whether this will stand up in court is an open question.

Why was Jammu & Kashmir treated differently in the first place?

Article

370 and Article 35A, the main provisions that carved out a special

position for Jammu & Kashmir within the Indian republic, were never

favours granted down to the state. Instead, they were the foundation on

which the state decided to enter the Indian Union. The history is

obviously incredibly complex, but to put it quite simply, the newly

formed Union of India, in the years after Independence, allowed a number

of states previously headed by maharajas and other leaders (known as

the “princely states”) to join on their own terms.

Because

Kashmir was poised between Pakistan and India, its position was

initially ambiguous, but after the invasion of tribesmen and Pakistan

Army men in disguise, Raja Hari Singh signed an Instrument of Accession

and the state eventually made its way into the Union. It did so,

however, on the basis of a number of special conditions. Entire books

have been written about this process and the fact that a plebiscite was

promised to the people of the state, but the ultimate outcome was that

Jammu & Kashmir become a part of India, albeit with a unique status

in the Republic.

The Indian Express has a good explainer on this history, and Scroll.in has covered the various debates over these provisions at length.

Why is this being done?

The

removal of Jammu & Kashmir’s special status has been a

long-standing demand of many on the Right, who believe that it

perpetuates an unfair compact within the Republic and is responsible for

allowing militancy to flourish in the state. It was also a promise in

the BJP’s manifesto. Amit Shah, while introducing the changes, also

claimed that the special rules for the state have meant that groups

within it, like Scheduled Castes and women, were discriminated against.

But

the proposed changes do not just alter the special status of Jammu and

Kashmir. They also seek to turn it into a Union Territory. This means it

would not have full federal, democratic rights within the Indian Union,

and instead will be subject to much more power being wielded by New

Delhi – including over subjects of land and law and order.

Delhi,

the city, is itself a Union Territory with a legislature, the same

model proposed for Jammu & Kashmir. This situation, where it doesn’t

have full rights, has led to tremendous conflict between the elected

government of Delhi and the Centre, and it is quite likely that the same

would happen as a result of this change – with the balance of power

lying clearly on the side of the Centre.

What will happen next?

Parliament

will spend the day debating the proposed resolutions and the Bills, but

because they have not been proposed in the form of a Constitutional

Amendment, it seems likely that the government has the numbers to make

such a change.

Meanwhile, the government has ensured a complete

clampdown in Jammu and Kashmir, curtailing all communication, movement

and gathering. Whenever information does trickle through into the

Valley, though, it is likely to receive tremendous amounts of pushback

from the state – which is why the government curtailed civil liberties

in the first place.

This article was originally published on scroll.in and has been republished with permission.

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