What is the status of Article 370 in our Constitution after August 5, 2019? It is believed to be dead and defunct and eliminated from India’s Constitution. But, is it true?
To fully comprehend the significance of the “elimination” of Article 370 from India’s Constitution in 2019, one must learn about its historical roots. There is a need to look into its provisions, trace its evolution over time, and examine the profound effects it has had on the political situation in India, especially in J&K.
Let us have a look at Article 370’s historical context. India’s independence from the British in 1947 was accompanied by its blood-spattered partition. India and Pakistan faced the daunting task of assimilating over 500 princely states into their own territories. The princely states were given the option to either join one of the countries or remain independent. Jammu and Kashmir was ruled by the Hindu Maharaja Hari Singh, but the majority of its population was Muslim. Hari Singh did not want to join either country. He wanted to remain independent. But in October 1947, Pakistani forces in the guise of tribal militias invaded Kashmir. The Maharaja was left with no choice but to seek military aid from India and agree to join the Union of India. On October 26, 1947, he signed the Instrument of Accession, effectively incorporating Jammu and Kashmir into India.
Why did the Need for Article 370 Arise?
Article 370 was added to the Indian Constitution in response to the unique political situation in Jammu and Kashmir. This was supposed to be a “temporary provision” in Part XXI, which granted certain privileges to Jammu & Kashmir, such as the ability to have its own constitution, flag, and a degree of autonomy in managing internal matters. The Union Government of India had authority over defence, communications, and foreign affairs.
Who Were the Key Figures Involved in the Development of Article 370?
Sheikh Abdullah, a prominent Kashmiri leader, strongly supported the concept of autonomy within India. He was worried that if complete integration occurred, it could result in the isolation of Kashmiri Muslims. Prime Minister Jawaharlal Nehru supported the special status because he firmly believed it would enhance the loyalty of Kashmiris towards India. Vallabhbhai Patel, the Deputy Prime Minister of India who spearheaded the unification of princely states, and BR Ambedkar, the Chairman of the Constituent Assembly, had some misgivings about the provisions. But they eventually consented to making concessions for Kashmir, recognising it as a temporary resolution. Moreover, Pakistan’s not-so-veiled invasion had lent a sense of urgency to resolve the differences to hasten India’s military counter-offensive. N. Gopalaswami Ayyangar, a member of the Constituent Assembly, drafted the Article to preserve Kashmir’s autonomy.
What made Article 370 so Special?
The Article guaranteed a special status to the state of Jammu & Kashmir. Let us have a look at the provisions that made Article 370 special.
1. Limited Application of Indian Laws: Article 370 restricted the application of many Indian laws in Jammu and Kashmir. As per the Instrument of Accession, the Indian Parliament had the power to enforce laws regarding defence, foreign affairs, and communications in the state.
2. Independent Constitution: On January 26, 1957, Jammu and Kashmir adopted its own constitution. It effectively superseded the Indian Constitution in terms of local governance and civil rights by granting exclusive powers to the state in various domains.
3. Permanent Residency Restrictions: Article 370 introduced a rule that limited land ownership and permanent settlement in Jammu and Kashmir to residents only, in order to prevent non-residents from doing so. The objective was to maintain the region’s distinct demographic and cultural traits by implementing restrictions on the migration of individuals from other areas of India.
4. Presidential Order Requirement: The President of India could enact Indian laws in Jammu & Kashmir only through a presidential order, but this required the consent and cooperation of the state government.
What made Article 370 so Controversial?
Even when the Article was being considered there were misgivings about its effect on the Indian Union’s basic constitutional structure. There were also differences among the major dramatis personae regarding its provisions and duration.
The Article’s Transition from Temporary to Permanent
Article 370 was meant to be temporary. But it gradually became a permanent part of the Constitution. The absence of a unified political agreement, along with the complex difficulties of incorporating Kashmir, and the opposition from within the state, all played a role in this significant change. Over time, many political factions, notably the Bharatiya Janata Party, consistently pushed for the repeal of Article 370. They argued that this article hindered the full integration of Jammu & Kashmir with the rest of India, which would encourage separatism.
Nationalist Sentiment Overwhelmed the Political Debates
Article 370 consistently generated heated political discussions in India for many years. Supporters of the provision claimed that it protected Kashmir’s unique identity and guaranteed its political loyalty to India. They believed that removing Article 370 would lead to the isolation of the people of Kashmir and trigger social turmoil. Conversely, opponents of the policy argued that it stifled the region’s growth and promoted discrimination against non-residents. The Article arguably nurtured, strengthened and institutionalised separatist sentiments in the Valley.
On the other hand, nationalist sentiments gained strength and momentum in India. Especially over the last couple of decades the demand for the revocation of Article 370 intensified. B.R. Ambedkar’s dissenting remark was widely quoted, "You want India to defend Kashmir, feed its people, give Kashmir equal rights all over India. But you want to deny India and Indians all rights in Kashmir. This is a position I am not prepared to accept."
Rise in Separatism and Violence
During the 1980s and 1990s, insurgency and separatist violence increased in Jammu and Kashmir, leading to an increased deployment of the armed forces. Killings and forced exile of Kashmiri Pandits provided ammunition to the critics of Article 370. They blamed the Article for creating a psychological and physical divide between Kashmir and the rest of India. They advocated its abrogation to combat militancy and ensure the state’s integration and development. This advocacy was further strengthened by L.K. Advani's remark, “This is not merely a political or constitutional issue; it concerns the unity and integrity of our country.”
When and How was Article 370 “Abolished”?
August 5, 2019, marked a pivotal moment in history as the Union Government revoked Article 370. This move resulted in the state’s division into two Union Territories, thereby nullifying the special status of Jammu and Kashmir. Of course, Jammu & Kashmir has its legislative assembly, but Ladakh does not.
1. Constitutional Amendments: The government employed Article 367, which allows for constitutional interpretation, to rename the non-existent “Constituent Assembly” of Jammu and Kashmir as its “Legislative Assembly.” This redefinition allowed the Indian Parliament to approve the change without requiring consent from the state legislature.
2. Reorganisation of Jammu and Kashmir: Through the reorganization of Jammu and Kashmir into Union Territories, the central government successfully asserted direct control over the region and imposed limitations on its legislative powers.
3. Impact on Property Rights and Demographic Composition: The revocation has resulted in a new policy allowing non-residents to purchase property in Jammu and Kashmir. This decision will have significant implications for the region’s population and progress.
What are the Legal and Social Implications?
The revocation of Article 370 underwent rigorous legal examination. The Supreme Court was called upon to assess its constitutionality. According to the opponents, to make any amendments to Article 370, it was necessary to get the consent of Jammu and Kashmir’s Constituent Assembly, which had ceased to exist in 1957. Despite the differing opinions, supporters strongly believed that the repeal of the article was crucial to promote equality and foster progress in Kashmir.
How have the World and the Rest of India Reacted?
The international community responded cautiously to the changes, with certain countries voicing concerns about human rights. Within the country, the decision ignited controversy, with nationalist groups firmly supporting it and opposition parties and Kashmiri groups raising objections, perceiving it as a gradual loss of their self-governing powers.
What are the Future Implications for Kashmir and India?
Security and Development
The consequences of the revocation have resulted in a variety of outcomes, both advantageous and disadvantageous, regarding security and progress. The government asserts that insurgency has been successfully contained, and they are currently witnessing an upswing in implementing development projects. Although there has been a reduction in violence compared to previous years, the region remains heavily militarised, and incidents of violence persist.
Economic, Political and Social Changes
In order to promote economic growth, the government has eliminated residency restrictions. This move aims to attract investment and encourage industries to set up operations in the area, ultimately leading to the creation of new job opportunities. The expectation is that educational institutions and health facilities will improve under direct central administration, aligning their development goals with the rest of India. Conversely, there are anxieties about the potential loss of their cultural and demographic identity, which they believe was safeguarded by Article 370.
Many Kashmiri leaders, including those who were previously affiliated with mainstream Indian parties, currently feel marginalised. Although the elections for Jammu and Kashmir’s assembly have been held, local political leaders still have doubts about the extent of empowerment that will be granted to the region’s residents.
Politics in J&K and India will shape the future. But one thing is clear, the abrogation of Article 370 is irreversible.
Is Article Really Dead and Gone?
Let it be understood that, contrary to popular belief, Article 370 has not been obliterated from the Indian Constitution. It has been retained, but its form has been radically changed.
The government has effectively rendered the Article’s operational powers inactive while maintaining its physical presence in the constitutional text. In 2019, the central government changed the functioning of the Article by amending Article 367, which deals with constitutional interpretation, through a well-designed Presidential Order. By making this strategic decision, they could bypass the previously necessary approval of the J&K Constituent Assembly for implementing these changes.
This change has signalled the end of the distinct status that J&K held within India’s federal system, where it previously had notable autonomy in lawmaking and special benefits. Although it remains in India’s Constitution, Article 370 serves as a symbolic reminder of the region’s lost autonomy, as its crucial provisions are no longer in operation. The change has effectively incorporated J&K more completely into India’s administrative structure, although the continued existence of the Article in the Constitution acts as a reminder of the region’s unique history.
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