IMPACT OF ABROGATION OF ARTICLE 370
BY-SHAIK LALBEE (DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY)
The recent decision by Prime Minister Modi to revoke Articles 370 and 35A of the Indian Constitution which gave special status to Jammu and Kashmir has stirred controversy across the political spectrum. While the initiative's supporters emphasize that the move fulfils the Bharatiya Janata Party's campaign promise, which was returned for a second term with an increased six percent voting share, it is viewed by critics as the prelude to a majoritarian shift. On the outside front, the move is commended for taking advantage of Pakistan's focus on its western flank and the end game in Afghanistan, and for transforming Kashmir’s issue from a dispute with Pakistan into an internal matter. Nevertheless, to opponents, restricting the state of Jammu and Kashmir to the status of a union territory – truncated by the chopping off of Ladakh – does not bring an end to the question of Kashmir being the centre of an international dispute and that it is only a matter of time before Pakistan makes its presence known, likely by renewed war, either directly or by proxies. This is a very simple inference, the origins of India's policy are not to be found in the political calculations as much as in the theoretical underpinnings of the new government. The policy of the BJP, told as it is by Hindutva philosophy, is not about restoring Kashmir's stability as it says, but about heightening the intrinsic uncertainty of the situation, thus provoking Pakistan into a proxy war. Unless this were to happen, it could pay an internal political dividend by encouraging the BJP to reshape secular India into its emerging Hindutva-based type and bring Pakistan in a corner internationally, pushing it to wage a war once again. However, there is a connected link between each of them.
Article 370 of the Indian Constitution provides for the independent status of the Jammu and Kashmir states. The clause is written in Part XXI: Fixed, Transitional and Special Provisions of the Constitution. Upon its creation, the Constituent Assembly of Jammu and Kashmir was empowered to prescribe the provisions of the Indian constitution that were to be applicable to the state or to revoke Article 370 entirely.
Before the Modi government decided to terminate it with a presidential decree, Jammu and Kashmir had enjoyed a peculiar constitutional arrangement with the Union of India because of the conditions under which Kashmir's monarch Maharaja Hari Singh signed the Instrument of Accession after Indian independence under 1947 ended British paramount over his princely state. The move did not abolish Article 370; it effectively made Article 370 dead.
Home Minister Amit Shah declared in Rajya Sabha in an announcement with significant implications for Jammu and Kashmir that the government has revoked Article 370 of the Constitution which gives J&K special status. The government has also agreed to the partition the state into two parts of the Union-Jammu and Kashmir, which will have a legislature, and Ladakh, which will have no legislature. Shah's announcement was quickly followed by huge Upper House outcry with opposition MPs protesting in House Well.
The tabling of the initial reorganization bill is also indicative of the culmination of the Order's long reign in 1954. The Order of 1954 had introduced a provision to Article 3, namely that 'no law to increase or decrease the area of the State of Jammu and Kashmir or to alter that State's name or boundary shall be introduced in Parliament without the consent of that State's Legislature.' The State Legislature’s authority to give prior consent no longer exists. This presented the Centre with a free hand to table the Reorganization Bill.
With the removal of the 1954 Order, the State Legislature’s power ceases to exist and parliamentary laws, including reservation laws, would apply to Jammu and Kashmir just as they do in other parts of the country. This was called by the government to end "positive discrimination" and to close the "chasm" between J&K residents and citizens of other parts of the country.
Furthermore, the removal of the 1954 Order negates a clause which has been added to Article 352. The Order had required that no declaration of emergency in the State on grounds of "just internal disorder or immediate threat shall have force" except with the consent of the Government of the State.
The step would be legally questioned on constitutional grounds and, more importantly, weaken the fundamental principle of the Delhi-Srinagar agreement negotiated in 1947. The task of preserving law and order. Pursuant to Article 370, the power of the President was used both to establish and exercise an enabling clause to amend the Order immediately, thereby dispensing with the position envisaged for the State Assembly.
The tool used by the government to rail its traditional political stance on Jammu and Kashmir via the Rajya Sabha has been both precipitous and stealthy. This change would test the social fabric of India not only in its effect on Jammu and Kashmir but also in the portents it carries for federalism, parliamentary democracy and plurality. The enactment of legislation as far-reaching as dismembering a state without advance consultation has set a new low. The entire procedure of essentially repealing Article 370 of the Constitution was characterized by executive arrogance. The alleged method of modifying a vulnerable border state's constitutional status was accomplished without any parliamentary consultation or political participation from its citizens.
One of the claims of the central government against the revocation of the special status of J&K is the possible economic gains associated with the change. The independent legal system of J&K and its stringent limitations on foreign ownership of real property in the area became a barrier for private investment and the creation of new enterprises. In the Kashmir Valley, however, the economic effect of the repeal is not readily observable.
IMPACT ON INDO-PAKISTAN RELATIONS:
India’s decision to revoke J&K's special status would possibly further strain bilateral ties between India and Pakistan. Recent strategic events include the expected departure from Afghanistan of U.S. forces, the potential return of an emboldened Taliban in Kabul, and the U.S. President Donald Trump’s comments about the resolution of the Kashmir issue may have pressured the Modi government to speed up the process of scrapping J&K's special status until the Indian Parliament's monsoon session concluded on August 7.
New Delhi is likely to fear that if the U.S. withdraws from Afghanistan and the Taliban returns to power, Pakistan-backed terror groups might get trained in Afghanistan and turn their focus to J&K. With the scrapping of J&K's special status, New Delhi is likely to try a shift in the discourse around the Kashmir issue, shifting the position it has held since the Shimla Agreement of 1972 that India and Pakistan should address their differences bilaterally. The Kashmir dispute that has now become India's "strictly internal matter," rather than a diplomatic issue to be resolved as a second party with Pakistan.
It is likely that the Modi government will now focus on formalizing the Line of Control and External Border, which Pakistan terms the Functioning Frontier, in an attempt to make non-negotiable the existing geographical division in Kashmir. The recent remarks by India's Defence Minister Rajnath Singh indicated that this transition is taking place when he said that any potential talks with Pakistan would only be on Pakistan-administered Kashmir. The obvious shift in India’s discourse could call for strong Pakistani responses. As such, it is not shocking that Islamabad has stepped up its diplomatic offensive to win foreign support on the issue of Kashmir, including expelling the Indian High Commissioner in Pakistan, halting cross-border trade with India, and launching outreach to China, the United States, the United Nations and the Organization for Islamic Cooperation (OIC). These diplomatic overtures threaten for India's internationalization of the J&K problem. The ensuing time may well see instability outbreaks in Kashmir rivalling the time at the outset of the early 1990s insurgency. Such rates of disaffection were most recently observed by the killing of nearly 100 rioters in late 2016. That number was just shy of the lower level achieved in 2010, when Kashmiris angered by security forces at Machhil on the LoC over the killing of three of their men. The angst can be heavier this time around. The more strict the state's clamp-down, the more rage on the street will undoubtedly be evident. Anticipating the political repercussions brought on by the setback to their political clout, it is unlikely that Kashmiris would accept the activities of New Delhi and use violence and rebellion against it.
India will find it hard to arrange polls, as the Prime Minister declared. Hindus from Jammu will rule the subsequent assembly, with Kashmiris possibly boycotting the vote. Whether such a result may be described as a 'political solution' is difficult to imagine. In other words, the 'permanent solution' – as the Defence Minister called it – imposed on the Kashmiri people by the Indian government would hardly gain momentum, so there will be little justification for any new local government. It is questionable to assume that better governance, as a union territory, could replace the will of the people. Yet the appeal of the step will depend on positive growth. A Conference of Investors was scheduled for October. The largest corporate house in India has stepped up, offering to invest in Kashmir. A rise in spending in Kashmir is envisaged now that land ownership has been thrown open, traditionally restricted to state subjects. This again is wishful thinking, because no investment in an unhealthy environment is possible. In fact, India's economic condition is deteriorating.
CHANGES AFTER ABROGATION:
Under Article 370, the President had used his authority to radically change the clause, expanding all central rules, instruments and treaties to Kashmir. The drastically altered Article 370 will still remain on the statute books, however. Though Jammu and Kashmir's Union Territory will have a legislature, it does not have one at Ladakh. The President's declaration effectively permitted the whole provisions of the Constitution to extend to the Jammu and Kashmir region, with all its additions, exceptions and modifications.
The Bill introduces specific powers to the Lieutenant Governor of the current Jammu and Kashmir Union Territory, and makes it the Union Territory Chief Minister's "duty" to "communicate" with the LG all administrative decisions and legislative proposals. Some of the federal laws and state laws of J&K would apply to the current regions of the J&K and Ladakh Union. J&K and Ladakh’s properties and liabilities will be divided within one year, on the advice of a Central Committee. Employees in state-owned public sector companies and autonomous bodies will remain for another year in their posts until their assignments are decided. The Centre's to be about the police and public order. The notice amends the term "Constituent Assembly" in Article 370’s provision (3) to mean "Legislative Assembly."
The Bill stipulates that the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh shall have a similar Lieutenant Governor. Lieutenant Governor Appointment in Ladakh: The President shall appoint the Lieutenant Governor pursuant to Article 239. The Lieutenant Governor will be assisted by the centre’s designated counsellors as the Union Territory does not have a Legislative Assembly. The Lieutenant Governor will be empowered to give orders of the same force and purpose as an act of the Lieutenant Governor’s assent to the Legislative Assembly.
J&K's peculiar status was supposed to stop but only with its people's rivalry. The abrupt move of the Centre disenfranchised them on an issue that had a direct impact on their life and feelings. Nevertheless, following a huge military build-up and the house arrest of top government figures, that was done, and the shutdown of communications shows a blatant disdain for democratic norms. With its aim to allow Jammu and Kashmir to completely integrate with India, this decision to change the status of the State may have unexpected and dangerous implications. The public backlash in Kashmir is what the Modi government expects-and should fear most. In the wake of Burhan Wani's death, they do not want to witness a repeat of the 2016 protests. Nevertheless, it will take some time to determine the true consequences of the decision, as the curfew is gradually easing and channels of communication in the Kashmir Valley have just begun to restore. It might impel a Pakistani preventive reaction, leading to a more aggressive response. However though Pakistan has settled for now on seeing the move as unrelated to Kashmir’s contested status as the situation progresses will manifest more complexity, eventually transforming the situation rapidly and comprehensively.
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