Published: 22nd Aug, 2019
Government’s procedure in changing Kashmir's special status overnight
- President Ram Nath Kovind issued a presidential order under Article 370 (1) of the This clause enables the President to specify the matters which are applicable to Jammu and Kashmir. As it can be issued only with the Jammu and Kashmir government’s concurrence, the notification uses the words “with the concurrence of the Government of the State of Jammu and Kashmir”. This presumably means the Governor, who is now administering the State under President’s Rule, has given his concurrence on behalf of the State government.
- The Order supersedes the 1954 Order. This effectively means that all the provisions that formed the basis of a separate “Constitution” for Jammu and Kashmir stand abrogated. The Order declares that all the provisions of the Constitution of India, shall apply to Jammu and Kashmir too.
- However, some special measures were still needed for the scrapping of Article 370 altogether. Therefore, a few clauses were added to Article 367 of the Constitution.
- Article 367 contains “Interpretations”. The new clauses say that all references to the State government shall mean “the Governor”.
- The reference to the “Constituent Assembly” in a proviso to Article 370 (3) has been amended to read “Legislative Assembly of the State”. This is the proviso that says the President can declare that Article 370 is no more operative only on the recommendation of the Constituent Assembly. As there is no Constituent Assembly in existence now, there is no body to “recommend” the demise of Article 370. Therefore, the State Assembly has to play that role.
- The issuance of the Presidential Order has set the stage for the abrogation of Article 370. Here, the government has made use of the fact that Jammu and Kashmir is under President’s Rule. Under the Proclamation issued under Article 356 of the Constitution, by which the President takes over the administration of a State, Parliament usually performs the legislative functions of the State Assembly.
- The Union Home Minister introduced two statutory resolutions
- To recommend that the President issue a notification rendering Article 370 inoperative. It will enable the President to declare that Article 370 has ceased to operate.
- To accept the Jammu and Kashmir Reorganisation Bill. The Bill envisages converting Jammu and Kashmir into a Union Territory with a legislature, and carves out Ladakh region as another Union Territory, but without a legislature.
Concerns regarding the process adopted to abrogate article 370
- The first is due process. The assembly does not exist at the moment either, and the notification suggests that it was the Governor’s concurrence that was obtained to render the provisions irrelevant. This is clearly not sufficient.
- The process has been pushed through without consultations with Kashmir’s political leaders, who have been under detention.
- The reorganisation of states requires the consent of the state assembly concerned. In this case, J&K has been bifurcated, and statehood diluted to UT status, without any deliberations in the assembly.
- Like all Indian citizens, Kashmiris seek greater democracy. Elements keen to destabilise India would seek to build a narrative that Delhi is taking away powers from the local level.
- It is important that the process of turning the state into a UT does not lead to alienation.
Development by abrogating article 370
- It would head towards ending separatism, nepotism and corruption and would provide welfare tothe people of Jammu and Kashmir.
- Women will enjoy greater rights as all the laws made at the centre will be implemented without any hindrance.
- SC, ST and individuals from other backward communities in other regions would enjoy special benefits as the central laws for welfare of these communities.
- The financial benefits for central government employees, including security forces, like LTC, HRA and more will be provide to those posted in Jammu and Kashmir.
- The vacant posts in Jammu and Kashmir will be filled. This will benefit the youth of Jammu and Kashmir. Local youth will receive employment.
- State companies as well as private companies will be encouraged to create jobs for the local youths in the state.
- J&K and Ladakh have the potential to become the biggest tourist destination in the world.
- Film industry would come to J&K for shooting their projects. Sport training, scientific education will help the youth of J&K to showcase their talent across the world.
- Several herbal and organic products are scattered across J&K and Ladakh. If they are identified and marketed in the global market, then it will greatly benefit the people and farmers of these regions.
Challenges
- It may swell the ranks of separatists.
- It may feed the rage and increase the distance between Srinagar and New Delhi.
- It may even push mainstream politicians to promote extremists views.
- It could lead to more bloodshed and encourage Pakistan to fish in muddied waters.
- Elements keen to destabilise India would seek to build a narrative that Delhi is taking away powers from the local level.
- It is important that the process of turning the state into a UT does not lead to alienation.
Impact on LoC status
- As with any bilateral treaty, the status or definition of the LoC can be legally altered only with the agreement of both India and Pakistan.
- The constitutional changes to Article 370 do not automatically make an impact on the status of the LoC.
- On a question over the impact of this constitutional change on the Pakistani side territory, the Indian home minister reiterated India’s claim to the whole of Kashmir.
- However, a diplomatic response from the Ministry of External Affairs clarified that the changes do not affect either the LoC or the Line of Actual Control (the disputed border with China running through Ladakh).
- Given these, many see the LoC as merely continuing with an indefinite and harmful status quo, thus preventing a substantive resolution of the conflict.
Legal contentions
- A domestic law of one country simply cannot amend a bilateral treaty without the consent of the other party.
- g. Previous amendments and additions to Article 370, too, have not changed the LoC.
- Also, in 2018, Pakistan introduced the Gilgit Baltistan Order 2018 to begin the integration of Gilgit Baltistan into the federal structure of Pakistan.
- It was a step towards making it the country’s fifth province, akin to Punjab or Sindh.
- While India and Kashmiris on both sides of the LoC opposed the move, there was no suggestion that the LoC should be sacrificed.
- Given these, the unilateral constitutional changes, as with scrapping Art 370, fundamentally violate the letter and spirit of the Simla Agreement.
- Notably, Article 4 (2) of the Simla Agreement states as below:
- Neither side shall seek to alter it (the LoC) unilaterally, irrespective of mutual differences and legal interpretations
- Both sides further undertake to refrain from the threat of the use of force in violation of this Line
- This would clearly justify internationalising the conflict over Art 370, violating the ceasefire and in the extreme, direct military action.
- Indeed, Pakistan briefly threatened to reconsider its adherence to bilateral treaties, including the Simla Agreement, in response to India’s latest move.
LADAKH AS A UT
Ladakh has been made a Union Territory along with the abrogation of Article 370 of the Constitution of India
About
- Ladakh is a mountaneous region which is sandwiched between Karakoram Range in North and Himalyan Range in the South.
- It is composed of two districts:
- Leh – It is the 2nd largest district of India and it covers more than half of the area of Jammu and Kashmir.
- Kargil – It lies near Line of Control. Zanskar Range is a part of Kargil.
Negative Implications
- Due to the expected change in demography and commercialisation of the region. Its unique ecological and cultural value may get affected
- Since the region is prone to international disturbances from China and Pakistan, a large portion of pasture land will be occupied by military personnel. This will affect the farmer community
- There is no evidence that coming under direct control of the central government would certainly lead to greater development of the region. For instance, the level of development in Andaman and Nicobar is not very impressive.
- The autonomy of Ladakh’s Autonomous Hill Development Council which was already on a decline will further reduce.
Positive Impact
- Currently, there is no medical college, engineering college or a management institution anywhere in Ladakh. Now, new start-ups, businesses and the government will create new infrastructure and boost development along with the creation of new jobs.
- The people of Ladakh will be brought to the mainstream Indian society.
- The increased tourism will bring significant revenue, which could be used to create additional social infrastructure.
Article 1 of the constitution says that India, that is Bharat, shall be a union of states and the territory of India is composed of territories of states, the union territories and any acquired territories as listed in Schedule 1 per Article 1 (3).
Article 370
- According to the Constitution of India, Article 370 provides temporary provisions to the J&K, granting it special autonomy. The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganized, shall not apply to the state of Jammu and Kashmir.
Salient features
- Parliament has very limited jurisdiction in case of J&K. Residuary powers rest with J&K. The Parliament has no power to legislate Preventive Detention laws for the state; only the state legislature has the power to do so.
- Centre has no power to declare financial emergency under Article 360 in J&K. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
- Part IV (dealing with Directive Principles of the State Policy) and Part IVA (dealing with Fundamental Duties) of the Constitution are not applicable to J&K. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to J&K; i.e., the Fundamental Right to property is still guaranteed in this state.
- The High Court of J&K has limited powers as it can’t declare any law unconstitutional. Under Article 226 of the Constitution, it can’t issue writs except for enforcement of Fundamental Rights.
- Urdu is the official language of the state
- Certain special rights have been granted to the permanent residents of J&K with regard to employment under the state, acquisition of immovable property in the state, settlement in the state, and scholarship and other forms of aid as the state government may provide.
- J&K citizens have an implicit dual citizenship, I.e., though there is no specific provision of dual citizen, there are certain rights that only an original resident of Kashmir enjoy. Even the voters’ lists for State elections and for Parliament elections are not common.
Article 35A
It is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
The moment the Instrument of Accession was signed by the Maharaja and was accepted by the Union of India, the whole state of Jammu and Kashmir became an integral part of India like other princely states. It became constitutional and legal duty of the Union of India to get back the whole of the territory which had been illegally occupied by Pakistan. The condition of acceptance of merger of Jammu and Kashmir after its acceptance by the people of J&K made pro-Pakistanis to hold plebiscite under the auspices of UN. Art.370 gave special status to the state of Jammu and Kashmir. It says that the provisions of act (repealed by the constitution 7th Amendment Act, 1956) shall not apply in relation to the state of Jammu and Kashmir. Sub Cl. (a) is discriminatory and against the constitutionalism. The law made by Parliament is applicable to the whole country, law making powers of parliament are unlimited and even they have extra territorial application. But in case of the state of Jammu and Kashmir law making powers are limited by (a) Sub-Cl. (b) of Art 370.
- Union list and Concurrent list in Constitution with the government of the state matters specified in the instrument of Accession. Such other matters in the said list with the concurrence of the state.
- Clause (1) of Act 370 is against sovereign law making authority of parliament and in violation of principles of constitutionalism. This article gives superior power to the state of Jammu and Kashmir over the parliament of India which is to obtain concurrence of the state before legislating for her
On January 17, 1956 new constitution was adopted in J&K Assembly. The Constitution of the state was enforced with effect from 26 January 1957. Constitution shaped as a republican democratic state within the Union of India, with its own separate flag, official language and elected head of the state called Sadar-i-Riyasat.
In 1958, constitutional amendment was brought under the purview of Central administrative services. Indus Water treaty and Indus Basin development agreement was signed between India and Pakistan with World Bank mediation and facilitation in September 1960.
Issues due to Article 370
- Affects unity and integrity: It wreaks havoc on the unity and integrity of the country as it creates boundaries for the people of J&K by providing them with separate constitution and rights. It builds emotional and psychological barriers between the people of Kashmir and the rest of India, thus fostering a psychology of separatism.
- Rising militancy and separatism: The separatist lobby in the state has used this barrier to build a mindset of alienation among the people. The poor and the down-trodden people of the state were exploited by the separatist leaders to keep this special status alive. It has led to rising militancy in the region. Most of youth take to stone pelting, remain unemployed and are devoid of welfare development.
- Violation of Right to Equality: No outsider can settle in the state, own any property and cannot vote in the state. Article 35 A had been used to define permanent residents. This violates the fundamental right to equality for Indian citizens and creates barriers for investment and thus development.
- Corrupt and radical administration: The state administration had been completely subverted from within by the separatist leaders who had infiltrated into the system over a period of time. This has led to government resources being used to further promote the propaganda of separatists.
- Affects International image: Existence of this statute is used by Pakistan and its proxies in the valley to mock at the very concept of ‘India being one from Kashmir to Kanyakumari. This affects India’s image on the international platform.
- It bars the people from outside the state to buy immovable and movable property here, set any industry or manufacturing unit, while no other state bars any state subject of J&K to invest there, acquire land or set business establishment.
- It act as obstacle in attracting the flow of investment from big business houses which are running mega projects and giving employment to thousands of educated youth according to their academic, professional, skilled, and non-skilled capabilities.
- Due to this lack of job avenues to the educated unemployed youth of state is forcing them to move out to other states for finding suitable source of bread earning. If this silent migration of youth continues, it will convert the state into a land of old and aged people in next 15-20 years, which is indeed a very serious matter and need to be taken note of by the government.
- Unemployment in J&K has promoted militancy. A poor youth after completing education with limited resources, after sitting idle for long, gets easily lured by the people who push them into anti-national activities by giving few thousands of rupees.
- It is a source of gender bias in disqualifying women from the State of property rights.
- It was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services.
- It is synonymous with decentralization and devolution of power, phrases that have been on the charter of virtually every political party in India.
SIGNIFICANCE TO J&K
- Through 1927 and 1932 notifications, Dogra ruler of the princely state of J&K, Maharaja Hari Singh imposed a law that defined state subjects and their rights. The law also regulated migrants to the state. J&K joined India through instrument of accession signed by its ruler Hari Singh in October 1947.
- After J&K's accession, popular leader Sheikh Abdullah took over reins from Dogra ruler. In 1949, he negotiated J&K's political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
- Article 370 guarantees special status to J&K, restricting Union's legislative powers over three areas: defence, foreign affairs and communications.
- However, under the 1952 Delhi Agreement between Abdullah and Nehru, several provisions of the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted then. (this insertion was not through Article 368, that is why it does not appear in the constitution)
- J&K's Constitution was framed in 1956. It retained Maharaja's definition of permanent residents: All persons born or settled within the state before 1911 or after having lawfully acquired immovable property and resident in the state for not less than ten years prior to that date. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.
- Permanent residents law prohibits non-permanent residents from permanent settlement in the state, acquiring immovable property, govt jobs, scholarships and aid.
- It was also interpreted as discriminatory against J&K women. It disqualified them from their state subject rights if they married non-permanent residents. But, in a landmark judgment in October 2002, J&K high court held that women married to non-permanent residents will not lose their rights. The children of such women don't have succession rights.
WHY IS ARTICLE 35A BEING DEBATED?
- An NGO, We the Citizens, challenged 35A in SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. It was never presented before Parliament, and came into effect immediately, the group argued.
- In another case in SC last month, two Kashmiri women argued that the state's laws, flowing from 35A, had disenfranchised their children.
WHY ARE POLITICAL PARTIES & SEPARATISTS OPPOSED TO TINKERING WITH 35A?
- Fear that it would lead to further erosion of J&K's autonomy and trigger demographic change in Muslim majority valley.
- Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus 'flooding' the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.
- National Conference and Peope’ Democratic Party are the two parties with larget voter base in J&K.
- NC Stand- NC seeks autonomy and a return to the 1953 position where New Delhi had authority only over Defence, Communications and Foreign Affairs.
- It has announced boycott of panchayat and urban local polls and threatened not to participate in Assemby and Lok Sabha Elections in Centre failed to protect Article 35A PDP too will boycott J&K local polls to save Article 35A
What power does Article 35A gives to J&K ?
- Empowers the state legislature of Jammu and Kashmir to define the “permanent residents” of J&K
- Allows the government of J&K to confer on these person special rights and privileges in matters of public employment, acquisition of property etc.
- Article also exempts such legislation form being annulled on the ground that it violates on or the other fundamental right
Back-story on the U.S. offer of mediation
- In 1993, the new administration of U.S. President Bill Clinton decided to wade into the Kashmir issue, indicating repeatedly that it wished to mediate between India and Pakistan.
- At the U.N. General Assembly, Mr. Clinton referred to resolving “civil wars from Angola to the Caucasus to Kashmir,” and a month later, the U.S. Assistant Secretary of State questioned the validity of Kashmir’s ‘Instrument of Accession’ during a press briefing.
- India has always opposed any suggestion of third-party mediation on Jammu and Kashmir; both the 1972 Shimla Agreement and the 1999 Lahore declaration included India’s and Pakistan’s commitment to resolving issues between them.
What about the U.S.?
- A particularly bitter episode for India came from mediation attempts by the U.S. and the U.K. after the 1962 Sino-Indian war.
- The U.S. had provided India with planes and military hardware during the war and the price was that India should agree to mediate talks with Pakistan on Kashmir.
- The mediation was accepted because Nehru was in shock after the defeat to China, and the U.S. made it clear that any further military assistance was contingent on India’s cooperation on Kashmir talks.
- The day war ended, a team of 24 American negotiators headed to India, to bring India to the table for six rounds of talks between Foreign Ministers. Eventually, however as India regained its confidence, the talks floundered, and ended in 1963 after Nehru made it clear that India would never give up the Kashmir Valley.
Why does India refrain from taking help?
- Attempts have worked for diffusing tensions, or calling off hostilities at the Line of Control and the International Border, but not in terms of their rival claims over Jammu and Kashmir.
- Another reason is that India sees itself as a regional leader, and does not require any assistance in sorting out its issues with other regional countries.
- The widespread belief is that mediation favours the weaker party by levelling the playing field, and with its stronger conventional and non-conventional military prowess, India has seen no significant gain from bringing a third-party into its 70-year-old conflict with Pakistan.
- After winning the war with Pakistan that saw the creation of Bangladesh, India, in 1972, negotiated the Simla Agreement, which did away with any idea of future mediation between the two countries.
- According to the Agreement signed in 1972 by Indira Gandhi and by then President Bhutto, the two countries “resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them”.
- In February 1999, the Lahore declaration signed by Nawaz Sharif and Atal Behari Vajpayee also affirmed the bilateral nature of issues and their resolution.
- These bilateral efforts are at an end at present, and little has moved since the last negotiations on Kashmir in 2003-2008, when Indian and Pakistani negotiators discussed the four-step formula.
- India has maintained its opposition to third-party mediation, however, and despite offers from several leaders including South African President Nelson Mandela, UN Chief António Guterres, and more recently, the Norwegian Prime Minister, Erna Solberg all the above proposals were rejected.
Simla Agreement, 1972
- The Simla Agreement signed by Prime Minister Indira Gandhi and President Zulfikar Ali Bhutto of Pakistan on 2nd July 1972 was much more than a peace treaty seeking to reverse the consequences of the 1971 war.
- It was a comprehensive blue print for good neighbourly relations between India and Pakistan.
- Under the Simla Agreement both countries undertook to abjure conflict and confrontation which had marred relations in the past, and to work towards the establishment of durable peace, friendship and cooperation.
- The Simla Agreement contains a set of guiding principles, mutually agreed to by India and Pakistan, which both sides would adhere to while managing relations with each other. These emphasize: respect for each other’s territorial integrity and sovereignty; non-interference in each other’s internal affairs; respect for each other’s unity, political independence; sovereign equality; and abjuring hostile propaganda.
- The following principles of the Agreement are, however, particularly noteworthy:
- A mutual commitment to the peaceful resolution of all issues through direct bilateral approaches.
- To build the foundations of a cooperative relationship with special focus on people to people contacts.
- To uphold the inviolability of the Line of Control in Jammu and Kashmir, which is a most important CBM between India and Pakistan, and a key to durable peace
Lahore Declaration, 1999
- Shall intensify their efforts to resolve all issues, including the issue of Jammu and Kashmir.
- Shall refrain from intervention and interference in each other's internal affairs.
- Shall intensify their composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda.
- Shall take immediate steps for reducing the risk of accidental or unauthorised use of nuclear weapons and discuss concepts and doctrines with a view to elaborating measures for confidence building in the nuclear and conventional fields, aimed at prevention of conflict.
- Reaffirm their commitment to the goals and objectives of SAARC and to concert their efforts towards the realisation of the SAARC vision for the year 2000 and beyond with a view to promoting the welfare of the peoples of South Asia and to improve their quality of life through accelerated economic growth, social progress and cultural development.
- Reaffirm their condemnation of terrorism in all its forms and manifestations and their determination to combat this menace.
- Shall promote and protect all human rights and fundamental freedoms.
Reference to United Nations
- India made a reference to the United Nations on 1st January 1948 under Article 35 of the Charter, which permits any member state to bring any situation, whose continuance is likely to endanger international peace and security, to the attention of the Security Council.
- The intention behind this reference was to prevent a war between the two newly independent countries, which would have become increasingly likely if the tribal invaders assisted first indirectly and then actively by the Pakistan army had persisted with their agitations against India in Kashmir.
- The Government of India requested the Security Council "to put an end immediately to the giving of such assistance which was an act of aggression against India”.
- Pakistan consistently misled the world regarding its involvement in Kashmir:
- It claimed initially in 1947 that it was not in any way assisting the tribal invaders and was only not actively opposing their passage out of fear that they may turn against the local Pakistani population. It was, however, clearly established that these invaders were being looked after in Pakistan territory, fed, clothed, armed and otherwise equipped and transported to J&K with the help, direct and indirect, of Pakistani officials, both military & civil. The first Governor General of Pakistan, Mohammad Ali Jinnah claimed in a meeting with the then Governor General of India Lord Mountbatten that he was in a position "to gall the whole thing off” subject to some of his demands being met.
- Pakistan later claimed that its own forges were not involved directly in operations in Kashmir. But the UN Commission that visited India in July 1948 found Pakistani forges operating in Pakistan occupied Kashmir. The UNGIP Resolution of August 1948 documented the Pakistani aggression then it stated: "The presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitute a material change in the situation singe it was represented by the Government of Pakistan before the Security Council”.
Non-implementation of UN Resolutions by Pakistan
India had made it clear that full implementation of the UN resolutions would be conditional upon Pakistan fulfilling Parts (I) & (II) of the UNGIP resolutions of l3 August, 1948, which inter alia, required that all forges regular and irregular under the control of both sides shall cease fire; Pakistan would withdraw its troops, it would endeavour to secure withdrawal of tribesmen and Pak nationals and India will withdraw bulk of its forges once the UNGIP confirms that the tribesmen and Pak nationals have withdrawn and Pak troops are being withdrawn.
India was also to ensure that the State government takes various measures to preserve peace, lay and order. Indian acceptance of these UNGIP resolutions was also subject to several conditions and assurances given by UNGIP including that Pakistan would be excluded from all affairs of Jammu & Kashmir, "Azad J & K Government” would not be recognised, sovereignty of J & K government over the entire territory of the State shall not be brought into question, territory occupied by Pakistan shall not be consolidated, and Pakistani troops would be withdrawn completely. Pakistan never fulfilled these assurances.
Ending the conflict
- Tensions in Kashmir may have subsided, but the root causes of the violence there have not.
- In my assessment, the Kashmir dispute cannot be resolved bilaterally by India and Pakistan alone even if the two countries were willing to work together to resolve their differences.
- This is because the conflict has many sides: India, Pakistan, the five regions of Kashmir and numerous political organizations.
- Establishing peace in the region would require both India and Pakistan to reconcile the multiple and sometimes conflicting aspirations of the diverse peoples of this region.
- Only when local aspirations are recognized, addressed and debated alongside India and Pakistan’s nationalist and strategic goals will a durable solution emerge to one of the world’s longest-running conflicts.
- Examine how far the ‘integrationist approach’ by abrogating article 370 will be successful in addressing the increasing alienation in the Kashmir Valley and promote inclusive development.
- Recently, USA has violated diplomatic protocols by trying to intervene in the Kashmir issue. Explain in the context of Simla Agreement and Lahore Declaration?
- Critically comment on the history of Article 370 of the Indian Constitution, its implications and relevance for the Union of India.
- Examine how the bifurcation of Jammu and Kashmir into two separate Union territories will help in assimilation of the people into mainstream Indian society and promote socio-economic development.
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