Centre has scrapped Article 370 of the Constitution that gave Jammu and Kashmir special status. It also bifurcated the state into J&K and Ladakh, saying both will be treated as Union territories
Mint delves into the history of the state after the Centre’s radical move
The Narendra Modi government has added a landmark chapter to Jammu and Kashmir’s history, with the state no longer having its own Constitution or a separate flag.
WHAT’S THE HISTORY OF J&K’S ACCESSION?
Jammu and Kashmir was a princely state ruled by Maharaja Hari Singh when India gained independence. It was a Muslim-majority state led by a Hindu king, who had his own ambitions of leading an independent state attached neither to India nor Pakistan. He remained undecided until October 1947 when Pashtun tribals, joined by the Pakistan army, entered the valley to dethrone him. Hari Singh also faced rebellion from sections of his own army. It was then that he agreed to J&K becoming a part of India under the Instrument of Accession to seek its help so that he could keep his throne. The Indian Army thwarted the Pashtun attack. Indian records show J&K’s accession was signed on 27 October 1947, after which the army was rushed in. Pakistan contests the accession, saying Hari Singh wasn’t in control of the state on that day and that the Indian government, led by then prime minister Jawaharlal Nehru, had already pushed in its army and forced the king to sign on the dotted line. Pakistan’s objection broadly lay in the accession of a Muslim-majority state to a Hindu-dominated country that contradicted the two-nation theory on which it was founded.
WHAT IS PAKISTAN-OCCUPIED KASHMIR?
As the Indian forces were busy pushing back the Pakistan army to regain control of the territory they had lost to the enemy, Nehru approached the United Nations Security Council on 1 January 1948 to help resolve the dispute. On his request, the UN passed a resolution calling for a ceasefire and asking Pakistan to withdraw from the territory it had occupied. The UN resolution also called upon India to hold a plebiscite in J&K so that the people of the region could determine who they wanted to be with. Pakistan never vacated these areas it had occupied and, thus, India never held the plebiscite. Pakistan-occupied Kashmir (PoK), which India’s western neighbour calls Azad Kashmir, is divided into two parts, Jammu and Kashmir, and Gilgit-Baltistan. India and Pakistan have fought four wars over Kashmir—in 1948, 1965, 1971, and 1999 (the Kargil war).
WHAT IS ARTICLE 370?
Article 370 of the Indian Constitution gave special status and treatment to J&K and its citizens. Article 370 was incorporated in the Constitution in 1949, two years after the state had acceded to India. It was signed between Hari Singh and Lord Mountbatten, the then Governor General of India, with Nehru’s blessings. Barring defence, foreign affairs, finance and communications, the Centre needed the concurrence of the state government to frame laws impacting it under Article 370. Article 360 of the Constitution gives the Centre the right to declare financial emergency in a state, but Article 370 prevented the Centre from doing so in the case of J&K, except during war or external aggression. The Article gave the state its own Constitution and a flag with various concessions granted to it.
WHAT IS ARTICLE 35(A)?
Article 35(A) was signed between Nehru and Sheikh Abdullah, then the prime minister of the state, in 1954 after the state had become part of India in 1947. It gave the state government the power to define who its resident was. The Article came with retrospective effect, defining a resident of the state as one who had been living there for 10 years. This meant that one could not buy property in the state if one wasn’t a resident there, irrespective of religion. It also meant that while people could vote in the Lok Sabha elections, they could not in municipality or state elections. Indian laws also did not apply on matters of inheritance of property when a Kashmiri woman married a non-Kashmiri. The Supreme Court’s decision to scrap Article 377 that decriminalized homosexuality also did not apply to the state.
WHAT IS THE OUTCOME OF THE GOVT’S DECISION TO SCRAP ARTICLE 370?
The government has scrapped Article 370, and with it goes Article 35(A), taking away any special status for J&K. The scrapping of Article 370 means that one would be able to settle in J&K, take up a job in the state, buy property there, and enjoy the same laws on property inheritance that citizens in other states do. The government has even gone a step ahead. It has proposed a bifurcation of the state into J&K and Ladakh, a Hindu-majority area. J&K has also lost its status as a state, as both areas are now Union territories (UTs). J&K will be a UT with a legislature, while Ladakh will not have a legislature. Thus, J&K will be run like Delhi, with powers divided between the lieutenant-governor (LG) and the chief minister, while Ladakh will be run like Chandigarh with the LG as its head. The decision to scrap Article 370 was done through an executive order of President Ram Nath Kovind. The government has already cleared the more difficult test of getting it approved in the Rajya Sabha. Given its numbers in Lok Sabha, getting the nod there is a foregone conclusion.
WHAT LED THE GOVERNMENT TO TAKE THIS DRASTIC STEP?
The Bharatiya Janata Party (BJP) has stood for the scrapping of J&K’s special status and promised this in its 2019 election manifesto. The step taken by the government comes in the wake of a couple of events. US President Donald Trump had recently said in a meeting with Pakistan Prime Minister Imran Khan that Indian Prime Minister Narendra Modi had requested him to mediate in the dispute, a statement New Delhi vehemently denied. The Indian government’s constant stand has been that the Kashmir problem is a bilateral issue. Besides, the US is withdrawing from Afghanistan and there are fears that Pakistan will again prop up the terrorist group Taliban in that country to foment trouble in the region. India cannot afford to be a mute spectator to the goings-on in its neighbourhood and the Modi government might have been compelled to act accordingly.
WHAT ARE THE MAIN POLITICAL FORMATIONS IN THE STATE?
J&K broadly has three geographical areas—the troubled valley of Kashmir, the plains of Jammu, and the hilly Ladakh. The Congress and the BJP are the main national parties in the state. BJP has a strong presence in Jammu and Ladakh but lacks mass support in the valley. There are three prominent regional parties—Farooq Abdullah’s National Conference, Mehbooba Mufti’s People’s Democratic Party and National Panthers Party. There are other political formations, too, in the state but they have chosen to stay away from taking part in the elections in the state for many years. These include the pro-Pakistan All Parties Hurriyat Conference, a political platform that has stood for a J&K state separated from India. Then there are terrorist organizations like Lashkar–e-Taiba and Jaish-e-Mohammed, which derive their support from Pakistan, and are active in the state. Several leaders from these organizations are accused of amassing personal wealth at the cost of the locals.
WHAT IS THE BROADER MESSAGE FROM THIS?
This decision, that follows the banning of instant triple talaq, could be a precursor to the Uniform Civil Code, another avowed objective of the BJP. Often, a UT is converted into a state to meet the aspirations of the people. This is the first time that a full-fledged state has been bifurcated into two entities which are not even states but UTs. This means vastly reduced political heft and powers for its politicians. The biggest message of this is that J&K is off any agenda for a bilateral dialogue with Pakistan, only extending India’s consistent stand that J&K was its integral part.
CAN THIS BE CHALLENGED IN COURT?
Yes, it can, and, in all likelihood, will be challenged in the Supreme Court. The argument against the decision will most likely be that Article 370 clearly states that the Centre can frame laws concerning J&K only after consulting the state assembly. Those opposed to the move would argue that there is no legislative assembly in the state at present, and, thus, the Centre cannot take a decision like this unilaterally. On this, the Centre can argue that there was an emergency situation in the state and that the security of the country was at stake. It can say that it took the advice of the governor Satya Pal Malik, the current constitutional head of the state.