The recent amendments in the constitution and the ‘Special Status’ which Jammu and Kashmir had, has been abrogated.
While politically there will be questions whether the move is right or not, whether it will shift the geo-strategic balance of the subcontinent, will it really bring development for the people of J&K or not, what about the aspirations of the Kashmiris who want to save their composite culture, whether the way it was done is it reflective of the constitutionalism enshrined in the constitution and what is the difference left between a democratic India and a communist China when both of them use the state machinery to cut off dissent.
Only time will be a be able to give us a better picture to these nuanced discussions.
But let’s look at the legal aspects to it, how exactly it was done and what are the questions of law which need to be answered by the Supreme Court as and when the order gets challenged.
The state of J&K was admitted into the Union of India vide the Instrument of Succession signed by the then Maharaja of Kashmir Hari Singh on 26th October 1947 and accepted by the then Government of India on 27th October 1947. [1]
While the Government of India accepted the accession, it added the proviso that it would be submitted to a “reference to the people” after the state is cleared of the invaders, since “only the people, not the Maharaja, could decide where the people of J&K wanted to live.” [2] It was a provisional accession.
The resulting Indo-Pakistani War of 1947 lasted till the end of 1948. At the beginning of 1948, India took the matter to the United Nations Security Council.
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The Security Council passed the resolution 47, asking Pakistan to withdraw its forces as well as the Pakistani nationals and the tribesmen from the territory of Jammu and Kashmir and India to withdraw the majority of its forces leaving only a sufficient number to maintain law and order, following which a plebiscite would be held. [3] A ceasefire was agreed on 1 January 1949, supervised by UN observers.
So the resolution had 3 points -:
- Pakistan to withdraw its troops and its tribesmen
- India to gain control of the entire J&K and have sufficient number of forces to maintain law and order
- After that a plebiscite would be held seeking the opinion of the people of J&K
While Pakistan talks about the plebiscite, it doesn’t speak anything about the first two points which were needed to hold a plebiscite. The resolution is like a contract which can be enforced only when the parties to it perform their specific duties but unfortunately that never happened. So as in case of a contract, the resolution also becomes void because of non-performance by the parties.
Another point which makes the rationale of plebiscite defunct is the change of demography. In 1947, the entire princely state of J&K (including POK, Trans Karakoram Tract and Aksai Chin) had approximately 23% non-Muslim population (as per 1941 census), this figure now has dwindled considerably and a lot of Pakistani Punjabi’s have also settled down in the Gilgit Baltistan region. [4]
So, the chance of a plebiscite is out of question.
Now coming back to Article 370 and 35A, after the ceasefire, elections were held in the State of J&K to elect the constituent assembly which would decide the fate of the state of Jammu and Kashmir.
On 15 February 1954 the assembly members who were present cast a unanimous vote ratifying the state’s accession to India. [5]
The preamble of the State of J&K reads-
WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,
having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty-sixth day of October 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof!
It is pertinent to note that the preamble and the resolution by the constituent assembly states that the state is an integral part of the Union of India.
The assembly not only did represent the Indian side of Kashmir but the whole of Kashmir, this resolution, as a result, makes Pakistan’s occupation of parts of Kashmir as illegal.
Article 370 was inserted as part of the Indian constitution as a temporary article which defined the relationship between Union of India and state of J&K and which conferred the state some special discretion which was not available to other states of the Union.
Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, under Article 370. The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’.
As it was added by a special order of the President of India, the President was well within its right to revoke it as well as it did through its order dated 05.08.2019. So, there is no ambiguity on this point!
Article 370 of the Indian constitution gave special status to the region of Jammu and Kashmir, allowing it to have a separate constitution, a state flag and autonomy over the internal administration of the state. The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.
According to article 370(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification
This meant that the President simply by an order can abrogate Article 370 provided that it gets a recommendation of the constituent assembly of the J&K to do the same.
Article 367 of the constitution of India is the interpretation clause of the constitution, what the government did was that it amended Article 367. As a result of the amendment, the word ‘constituent assembly’ was replaced by ‘legislative assembly’
So now the president can issue an order to abrogate Article 370 on the recommendation of the legislative assembly of the J&K. Does it seem fair?
Probably yes, if the parliament has the power to amend the constitution and we do not have to appoint a constituent assembly in order to bring wholesome changes in the constitution (42nd and 44th amendment especially), then why can’t the same logic be applied in the case of Jammu & Kas as well. At the end of the day, legislative assembly is an elected body which represents the wishes of the people of the state so it doesn’t seem unreasonable to vest in them the power to make such a recommendation.
But in reality, what happened was that since the legislative assembly was dissolved, the central government took the recommendation of the Governor of the state as the recommendation of the legislative assembly. Since the Governor cannot be truly called a democratically elected post as in the case of the President (elected through the elected representatives and not selected), doesn’t the presidential order become ultra-vires with respect to the basic structure of the constitution I.e. federalism.
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The Supreme Court has been critical of the Governor’s discretion in its various judgements, now whether the following recommendation was within the ambit of powers of the Governor is a question of law which needs to be interpreted by the apex judiciary.
The second contentious issue would be the fact that a full-fledged state was bifurcated and made into 2 separate UT’s, one with a legislature and the other without one by the J&K Reorganization Bill. It means that not only the special powers which the state had because of Article 370 are now gone but several others powers which other full-fledged states enjoy will be gone.
Section 13 of the Bill states that the provisions contained in Article 239 A of the Constitution that are applicable to Union Territory of Puducherry shall also apply to the Union Territory of Jammu and Kashmir. The UT Assembly has the power to enact laws on matters under the State List and the Concurrent List, barring subjects that are exclusively under the ambit of the Union Government. The Seventh Schedule has 61 subjects in the State List — law & order, health, land, local government etc — and 52 in the Concurrent List such as forests, wildlife protection, social security, employment, etc.
In the J&K Bill, Section 32 proposes that the Assembly can make laws on any subjects in the State and Concurrent lists except on state subjects relating to “public order” and “police”. Therefore, all laws on these two subjects will be directly under the Centre. This is the case in Delhi, too.
In Delhi, by insertion of Article 239AA and by virtue of the Sixty-ninth Constitutional Amendment passed by Parliament, the Assembly cannot legislate on matters in entry 18 of the State List, which is land. In J&K, the Assembly can do so.
While some grief is there regarding the division of the state but it’s pertinent to note that Ladakh historically wasn’t a part of the State of J&K ,it was only in the year 1834 that Ladakh was conquered and made a part of Sikh empire by Maharaja Ranjit Singh, later it was transferred to Gulab Singh who ruled the entire state of J&K thereafter. [6] Before 1838, Ladakh has always had a distinct culture from that of people of J&K as they have been closer to Tibet and Bhutan. Ladakh’s demography is also different which consists of majority of Buddhists, Hindu’s and Shia Muslims (Kargil) which is different from the Sunni Muslims of the valley. Ladakh’s assertion to be a different entity as that of J&K can be traced to as back as 1940’s when the head of the Buddhist council of Ladakh wrote a letter expressing how Ladakh should be a different entity than that of J&K. [7]
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But the question of law which the Supreme Court would need to address would be that can a unilateral Act of parliament pave way to diminish the status of a state to UT?
This would mean that parliament can make any state an UT by passing a bill and thereby take over some of its power. This implication would also mean that the central government will be able to take over the powers of some states by converting it into an UT if it dislikes the state government in power.
Wouldn’t this be against the principle of federalism which is part of the basic structure of the constitution.
Whether the Supreme Court is able to rise up to these facets of law remains to be seen. In the meantime, we can only pray that we get to witness another Keshvananda Bharti rather than an ADM Jabalpur.
[1] http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf
[2] Kashmir, India and Pakistan by Mohammad Abdullah
[3] http://unscr.com/en/resolutions/47 > Accessed on 14th August
[4] https://dspace.gipe.ac.in/xmlui/handle/10973/37337 > Accessed on 9th August
[5] http://www.jklegislativeassembly.nic.in/debates/debate%20Part%20I.pdf > Accessed on 14th August
[6] https://www.booksfact.com/history/list-kashmir-kings-since-3450-bce.html > Accessed on 18th August
[7] History and Religion in the Ladakhi Kingdom by Thomas A. Marks
Author – Dev Jain, (dev14jain@gmail.com), student at Campus Law Center, Faculty of Law, University of Law.
