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Article 370 and 35A: Origin, Provisions and the Politics of Contestation

2021, Serena Hussain (ed) Society and Politics of Jammu and Kashmir Palgrave Macmillan (2021)

In August 2019, the Indian government revoked the autonomous status of Jammu and Kashmir (J&K), protected by Articles 370 and 35A of the Indian constitution. The special provisions had been in place since October 1947, when its ruler acceded to India through a conditional Instrument of Accession. Although there has been significant media coverage of the abrogation and subsequent military siege in Kashmir, there remains scant awareness regarding the significance of the articles for Kashmiris. This chapter provides a historical account of how the articles came into existence and discusses why they were so highly contested. It allows the reader to appreciate better the implications of the abrogation of J&K’s special provisions and why such political fallout has come in its wake.

Related Papers

PEOPLE: International Journal of Social Sciences

Amitabh Hoskote

Article 370 of the Indian Constitution stipulates autonomy for the state of Jammu and Kashmir (J&K). Terms of the Article have remained mired in controversy owing its unequal dispensation within the framework of free India. This paper examines Article 370 and the validity of politics attached to it, based on four specific arguments. First, the Genesis of Article 370 spawns inequality in India. Second, its Retention implies festering of contentious issues. Third, its Ramifications forge inequality within J&K. Fourth, how Politics over Article 370 only seek limited leverage from it. These arguments have been examined through an engagement with primary and secondary sources and views analyzed in different traditions. The case universe comprises views across a spectrum of opinion. An interpretivist approach classifies this debate in the larger context of Continuation or Revocation of Article 370, based on the research question whether Article 370 has worked in the manner envisaged, or has aggravated inequality and fuelled growth of conflict in J&K.

Re-visiting Article 370: the politics of autonomy in Jammu and Kashmir

ABDUL H A S E E B MIR , Dr.Javid Ahmad Ahanger

This paper revisits one of the significant provisions of Indian Constitution visa -vis Jammu and Kashmir-Article 370. In this article, an attempt has been made to draw upon the historical trajectories of the inclusion, dilution and finally revocation of the Article 370. It also study the issue related to this provision and its criticism in the political corridors of state. The paper focuses on its political significance then and now. It scrutinises the issue related to this provision and its criticism in the political corridors of Jammu and Kashmir (J&K). The paper further explores the political ramification on Jammu and Kashmir after the abrogation.

International journal of Research and Analytical Reviews

Tariq A Rather

The paper briefly analyses the integration of the state of Jammu and Kashmir with the Indian Union through the Instrument of Accession (1947) under the pretext of Article 370 of the Indian constitution. Article 370 provided a special position to the state of Jammu and Kashmir in the quasi-federal-oriented polity of India as envisaged in its constitutional set up. It explores legal nature and character of the Article 370 within the Indian Constitution, and also highlights the true nature and meaning of autonomy of Jammu and Kashmir within the Indian Union. The author tries to highlight how after seventy four years Indian govt. arbitrarily and unilaterally abrogated Article 370 without the consent of Jammu and Kashmir constituent Assembly/Elected Government. This paper also analyses social, economic and political implications of abrogation of Article 370. It further highlightsthe exploitative nature of Indian government which was once upon a time a defender of democratic values and means.

Race and Class

Centre for Strategic and Contemporary Research

Fahad Nabeel

On 5 August, India abrogated Article 370 from its constitution through presidential order. The erasure of the Article ceased the autonomous status of Indian held Jammu and Kashmir (J&K) and bifurcated the Muslim-majority state into two union territories with Buddhist-majority Ladakh getting detached from J&K. The Indian decision of revoking Article 370 came after days of uncertainty and massive military build-up in the disputed territory. Coupled with massive military build-up, a crackdown was imposed in the state by virtually cutting it off from the rest of the world both physically and virtually. This piece of writing will analyze the violations of fundamental human rights in J&K by the imposition of crackdown through international human rights law.

Dr Serena Hussain

This paper provides a brief overview of the significance of Articles 370 and 35A and why their abrogation is problematic for the future of Jammu and Kashmir. This is followed by examples of accounts in which the experiences of local people from J&K were recorded, in order to understand the ground realities of the abrogation and annexation of the state. It then provides an overview of some of the key changes that have occurred within the state since August 5th 2019. The paper therefore brings the reader up to date on: the implications of the extreme policy move for both the lived experiences of the people within J&K; and rapid amendments taking place at administrative levels.

MOHD MUBARIQ MAHIRE

Govind Bhattacharjee

From time to time, Kashmiri politicians have used Article 370 for unnecessarily stoking up hatred and anger against the Indian state. Mr Omar Abdullah has recently held out the threat of secession if article 370 is abrogated. The article argues that the special category status of Jammu & Kashmir carries much more significance for the state than the much diluted Article 370. Without the special category status, the State can’t survive.

International Journal For Multidisciplinary Research

Subhomoy Barman

The history of Jammu and Kashmir and ladakh which was relegated to the status of two union territories legally and constitutionally, starts a new chapter in 2019. It was accompanied by extraordinary lockdowns, curfew and shutdowns on phone and internet connections,which caused significant anxiety,particularly in the valley. There have been questions regarding whether the Indian governments claim that it can bring peace by heavily militarizing an area that is already heavily militarized or whether it is only increasing centralized control over the area. The former state of Jammu and Kashmir's special status was revoked in 2019, which has a number of effects on its citizens. Following the COVID-19 pandemic,The double lockdown once implemented in the valley,further deteriorated the situation. This paper Addresses the human rights situation in the valley after four years of article 370 annulment.

QUEST JOURNALS

Article 370 has been often a point of discussion regarding the Jammu and Kashmir state. The article is rooted in the unique historical past of the J&K state. The fact remains that Kashmir politics is inseparably tied with article 370. The article encapsulates within itself all the vicissitudes of the historical past of Kashmir especially that of 1947 and the related developments. There is a need to decode the nature of this article and contextualize its emergence within the broader parameters of Kashmir's unique political and historical past. This article is an effort in that direction. The historical tracing of the emergence of this special constitutional provision has been specially focused with a discussion of its contentious nature.

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Explained: What are Articles 370 and 35A?

What is article 370 and 35a: a recent central ordinance, which extends reservation to scs and sts in j&k, throws the spotlight on article 35a, as well as article 370 from which it derives. what are these two provisions.

What is Article 370?

Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory. The IoA came into play when the Indian Independence Act, 1947 divided British India into India and Pakistan.

Explained: Here’s what has changed in Jammu and Kashmir

For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this joining with either of the two countries was to be through an IoA. Though no prescribed form was provided, a state so joining could specify the terms on which it agreed to join. The maxim for contracts between states is pacta sunt servanda, i.e. promises between states must be honoured; if there is a breach of contract, the general rule is that parties are to be restored to the original position.

A number of other states enjoy special status under Article 371, from 371A to 371I.

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What were the terms included in the IoA for Kashmir?

The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.

How did the accession come about?

Raja Hari Singh had initially decided to remain independent and sign standstill agreements with India and Pakistan, and Pakistan in fact signed it. But following an invasion from tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.

It was India’s stated policy that wherever there was a dispute on accession, it should be settled in accordance with the wishes of people rather than a unilateral decision of the ruler of the princely state. In India’s acceptance of the IoA, Lord Mountbatten stated that “it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”. India regarded accession as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru with the concurrence of Vallabhbhai Patel and N Gopalaswami Ayyangar wrote: “It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose.”

How was Article 370 enacted?

The original draft was given by the Government of J&K. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. Moving the motion, Ayyangar said that though accession was complete, India had offered to have a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”. On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.

Was Article 370 a temporary provision?

It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’. Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite. The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article 370. Delhi High Court in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370 is temporary and its continuation is a fraud on the Constitution. The Supreme Court in April 2018 said that despite the headnote using the word “temporary’, Article 370 is not temporary. In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.

Can Article 370 be deleted?

Yes, Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. Since such an Assembly was dissolved on January 26, 1957, one view is it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.

What is Article 370’s significance for the Indian Union?

Article 370 itself mentions Article 1, which includes J&K in the list of states. Article 370 has been described as a tunnel through which the Constitution is applied to J&K. Nehru, however, said in Lok Sabha on November 27, 1963 that “Article 370 has eroded”. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status. By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments. Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended.; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.

The Centre has used Article 370 even to amend a number of provisions of J&K’s Constitution, though that power was not given to the President under Article 370. Article 356 was extended though a similar provision that was already in Article 92 of the J&K Constitution, which required that President’s Rule could be ordered only with the concurrence of the President. To change provisions for the Governor being elected by the Assembly, Article 370 was used to convert it into a nominee of the President. To extend President’s rule beyond one year in Punjab, the government needed the 59th, 64th, 67th and 68th Constitutional Amendments, but achieved the same result in J&K just by invoking Article 370. Again, Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor. In certain ways, Article 370 reduces J&K’s powers in comparison to other states. It is more useful for India today than J&K.

Is there any ground in the view that Article 370 is essential for J&K being a part of India?

Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is categorical acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.” Article 370 is not an issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather than integration.

What is Article 35A?

Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.

Why is it being challenged?

The Supreme Court will examine whether it is unconstitutional or violates the basic structure of the Constitution. But unless it is upheld, many Presidential Orders may become questionable. Article 35A was not passed as per the amending process given in Article 368, but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order.

Article 370 is not only part of the Constitution but also part of federalism, which is basic structure. Accordingly, the court has upheld successive Presidential Orders under Article 370.

Since Article 35A predates basic structure theory of 1973, as per Waman Rao (1981), it cannot be tested on the touchstone of basic structure. Certain types of restrictions on purchase of land are also in place in several other states, including some in the Northeast and Himachal Pradesh. Domicile-based reservation in admissions and even jobs is followed in a number of states, including under Article 371D for undivided Andhra Pradesh . The Centre’s recent decision extending to J&K reservation benefits for SCs, STs, OBCs and those living along international borders, announced last week. throws the spotlight back on Article 35A.

Parent provision and its offshoot

Article 370.

Part of the Constitution ever since it came into effect, it lays down that only two Articles would apply to J&K: Article 1, which defines India, and Article 370 itself. Article 370 says other provisions of the Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly.

• Article 35A

Introduced by a Presidential Order of 1954, it empowers the J&K legislature to define a “permanent resident” of the state, and to provide special rights and privileges to those permanent residents.

(The author is an expert of constitutional law and Vice-Chancellor of NALSAR University of Law, Hyderabad )

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Article 370

Oct 09, 2014

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Article 370. A Bridge or A Barrier. STAKEHOLDERS. Major Stakeholders. Omar Abdullah Chief Minister of J&K From JKNC. Narendra Modi Prime Minister of India From BJP. Regional political parties. Regional political party. Jammu and Kashmir National Conference.

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Presentation Transcript

Article 370 A Bridge or A Barrier

STAKEHOLDERS

Major Stakeholders Omar Abdullah • Chief Minister of J&K • From JKNC Narendra Modi • Prime Minister of India • From BJP

Regional political parties Regional political party

Jammu and Kashmir National Conference • Farooq Abdullah: Head of Party • Ali MohommadSagar: Party Member • DevinderSingh Rana: Party Member • NasirAslanWani: Party Member • Qamar Ali Akhoon: Party Member • Sheikh Nazir Ahmad: General Secretary

Jammu and Kashmir Panthers Party • Bhim Singh: Founder of Party • Balwant Singh Mankotia: Head of Party • Harsh Dev Singh: Party Member • NavinBhakshi: Party Member • Mohd. Ramzan: Party Member

Jammu and Kashmir People’s Democratic Party • Mehbooba Mufti: Head of Party • Mufti Mohammad Sayeed: Member of Party • MuzaffarHussainBaig: Party Member • S.Trilok Singh Bajwa: Party Member • TareeqHameedKarra : Party Member

National Political Parties National Political Party

Bhartiya Janta Party • Amit Shah: Head of Party • L.K. Advani: Member of Party • Ravi Shankar Prasad: Party Member and Law and Justice Minister • Dr. MurliManoharJoshi: Party Member • ArunJaitely: Party Member and Defence and Finance Minister • SushmaSwaraj: Party Member and Foreign Affair Minister

Indian National Congress • Sonia Gandhi: Head of Party • Dr.Karan Singh: Senior Member, Ex-Governor of J&k, Son of Maharaja Hari Singh • Rahul Gandhi: Vice-President of Party • Dr. Manmohan Singh: Party Member and • Jaipal Reddy: Party Member • GhulamNabi Azad: Party head in RajayaSabha

Communist Party of India • S. Sudhakar Reddy: Head of Party • D. Raja: National Secretary • ArdhendhuBhushanBardhan : Party Member • BinoyViswam: Party Member • E. ChandrasekharanNair: Party Member

Communist Party of India(Marxist) • Prakash Karat: Head of Party • BasudevAcharia:Party Head in LokSabha • Brinda Karat: Party Member • Biman Bose: Party Member • ManikSarkar: Party Member

Bahujan Samaj Party • Maywati: Head of Party • Satish Chandra Mishra:General Secretary of Party • DhananjaySingh : Party Member • KadirRana : Party Member • ArvindKumar Chaudhary : Party Member

National Congress Party • SharadPawar: Head of Party • Tariq Anwar: Co-founder of Party • PrafulPatel : Party Member • AjitPawar : Party Member • R.R Patil : Party Member

Rules to be followed • The delegates are expected to use parliamentary language at all times. • The delegates can hold up a press conference anytime during the committee after taking prior consent from the Executive board. The executive board will forward the same proposal to the Secretary General. • Delegates are expected to encourage smooth running of the conference. • Delegates are supposed to wear their respective conference identity cards at all times around the neck. • Delegates are allowed to carry their laptops/ipad/tabs. The management is not responsible for any kind of loss or damage. • Delegates are requested to very carefully go though the background guides for proper research with reference to their respective committee topics. • The principle of Parliamentary procedure where only one person speaks at a time must be strictly followed. • Each member shall have one vote and decisions will be taken only if two thirds of the committee votes for it. • English is the official language for communication. • Delegates are responsible for their own trash. After each committee session, each delegate is to clean his/her own area before leaving the room. • Delegates must respect the meeting room and furniture. Delegates found writing on tables or chairs will be removed from the conference. Delegates may not bring food into the committee rooms. • Delegates will pass memo to all the other delegate member from the different party.

What are we looking after the Conference? After a two day debate with all the stakeholders the main motive of the conference is that is the abrogation of the Article 370 from the Constitution of India effective or not.

Award Policy • Each committee will award three titles ‘Principal Speaker Award’, ‘Best Opponent Award’ & ‘Best Research Award’. • ‘The Best Participating School’ will be awarded on the basis of performance in all the three simulations. • The recipients of these awards will be chosen by the Secretary General of the conference on the basis of recommendations from the simulation executive board members who will chair the respective committees. • The factors to be taken into consideration are as follows: • Extensive and accurate knowledge of committee topics, as well as application of said knowledge. • Effective and diplomatic communication with other delegates. • Contribution to pragmatic and acceptable solutions to the discussed issues. • The ability to make cohesive and swaying arguments. • Skill in the development of resolutions and amendments.

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Article 370 Revoked, Business Opportunities To Increase In J&K

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Article 370 deals exclusively with Jammu and Kashmir State that came under the administrative control of the Government of India after the country's 15 month war that Pakistan started in 1947 to seize sovereignty and is arguably the most controversial provision of the Constitution of India. x The origin of Article 370 can be traced back to British Raj in India. Prior to the partition of 1947, India was divided in two different sets of geographical regions provinces which constituted 60 of the land area of the sub continent known as British India and princely states which constituted the rest 40 of British India. x The 562 such princely states were ruled by the Princes, Maharajas, Nawabs, Rajas and so on and ranged in size and population. They contributed 100 million of the subcontinent's total population of 400 million inhabitants at the time of independence. British looked after the defence, foreign policy and communications of these states. But the states were not directly ruled by the British and were allowed governance in internal matters such as law and order, civil liberties, health, education and economic development in return for which they each acknowledged British 'paramountcy' through individual treaties, The British gave an Indian State and its ruler protection against neighbors and usurpers by stationing company troops in its capital under the control of a British Resident. x Their citizens were not British subjects, like the other Indians, but 'British protected persons'. The troops were, of course, very much a two wedged weapon while they were protecting the prince, they were also keeping him in check, a privilege for which he was expected to pay. The case of Jammu and Kashmir was very telling in this context. 3 x The British transferred the State forever to Maharaja Gulab Singh under Treaty of Amritsar, for 75 lakhs in 1846, and fixed a nominal annual payment to protect his territories from external enemies. X In February, 1947, Government announced that independence would be given to British India, the plan was to create two independent dominions of India and Pakistan based on the Hindu and Muslim majority areas of the various provinces that constituted British India. The policy was announced by the British Government's with regard to Indian states. Political arrangements between the States on the one side and the British Crown and British India on the other were to be brought to an end under that policy. The rights surrendered by the States would revert to the States when the partition of India and Pakistan were created. The communal basis of division of British India would not affect the States at all thus, with the withdrawal of power, the princely States would become 'independent'. Neither the British Government nor the cabinet mission made any suggestion regarding the future of the princely States except that they would become legally independent. The prospect of all 562 Indian States exercising their independence came under chaos over the dominions of India and Pakistan since both competed to absorb these states. V. P. Menon proposed that the princely rulers should be persuaded to hand over just three functions of their States to the central government of India defence, external relations and communications, the same functions which had been always exercised by the British government. x There was an agreement between JandK with Pakistan and India that both will not attack JandK. While India kept its word and refrained from attacking, JandK chose to remain independent when India and Pakistan gained their independence on 15th and 14th August 1947, respectively. In spring, internal revolt begins in the Poonch region against oppressive taxation under the recently imposed direct rule by the Maharaja In August, Maharaja's forces fire upon demonstrations in favour of Kashmir joining Pakistan, burn whole villages and massacre innocent people The people of Poonch evacuate their families and at least 60,000 refugees fleeing to Jammu by 13 September. The rebellion spreads to adjacent Mirpur and Muzaffarabad. The Poonch rebels declare an independent government of "Azad Kashmir on 24 October Pakistan attacked Kashmir on 6th October 1947 by "Azad Kashmir Forces supported by Pakistan. To save JandK, the then ruler of JandK Maharaja Hari Singh chose to accede JandK to India. 1947 The Maharaja of the State of Jammu and Kashmir signs the Instrument of Accession IOA on 26 October, acceding the 75 majority Muslim region to the Indian Union, following invasion by the tribesmen from Pakistan, according to the 1948 Indian White Paper India accepts the accession, regarding it provisional until such time as the will of the people can be ascertained by a plebiscite, since Kashmir was recognized as a disputed territory. The instrument of accession was signed by the ruler of Jammu and Kashmir whereby only Defence, Communications and External Affairs were surrendered by the State to the Dominion of India. In October 1947, the then prime minister of India Pt. Jawahar Lal Nehru made certain commitments and in consideration of those the accession was made by the ruler in favors of India. Article 370 was then incorporated in the Constitution in the pursuance of those commitments. Article 370 gave JandK a greater measure of autonomy as compared to other states and the power of the Union of India is restricted in the state. The Indian Parliament would need the state governments concurrence for applying all other laws. 1947 1952 Sheikh Abdullah drifts from a position of endorsing accession to India in 1947 to insisting on the self determination of Kashmiris in 1952. In July 1952, he signs Delhi Agreement with the Central government on Centre State relationships, providing for autonomy of the State within India and of regions within the State Article 370 is confirmed and the State is allowed to have its own flag. The domination of Kashmir Valley which has a 95 Muslim majority and accounts for more than 50 of the total population of Indian JandK and Abdullah's land reforms create discontent in Jammu and Ladakh An agitation is launched in the Hindu majority Jammu region against the Delhi Agreement and in favour of full accession with the Indian Union the movement is withdrawn later, due to pressure from the Center Secessionist sentiments in the Valley and communalism in Jammu feed each other. Asim Jaiswal "Article 370" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-2 | Issue-5 , August 2018, URL: https://www.ijtsrd.com/papers/ijtsrd17026.pdf Paper URL: http://www.ijtsrd.com/humanities-and-the-arts/other/17026/article-370/asim-jaiswal

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Article. Definite and indefinite. Articles. A/ An The. Using Articles. What is an article? Basically, an article is an adjective. Like adjectives, articles modify nouns. a/an is used to modify non-specific or non-particular nouns. the as definite article

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Asia pacific | what is article 370, and why does it matter in kashmir.

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Asia Pacific

What is article 370, and why does it matter in kashmir.

By VINDU GOEL UPDATED Updated August 5, 2019

Disputed area

Kashmir, a mountainous valley that borders Pakistan and India, has been a center of conflict between the two nuclear-armed countries since the 1947 partition of British India.

At the time of the partition, the British agreed to divide their former colony into two countries: Pakistan, with a Muslim majority, and India, with a Hindu majority. Both nations covet Kashmir, which is Muslim majority, and occupy portions of it with military forces.

For decades, an uneasy stalemate has prevailed, broken by occasional military incursions, terrorist attacks and police crackdowns. But on Monday, the Indian government decided to permanently incorporate the territory it controls into the rest of India .

The administration of Prime Minister Narendra Modi revoked Article 370 of the Indian constitution, a 70-year-old provision that had given autonomy to the state of Jammu and Kashmir, which includes the Hindu-majority area of Jammu and the Muslim-majority Kashmir valley.

The government also introduced a bill to strip the region of statehood and divide it into two parts, both under direct control of the central government.

But Mr. Modi, a Hindu nationalist, had campaigned for re-election in part by stoking patriotic fervor against Muslim-led Pakistan. He promised the full integration of Kashmir, a cause which his party has championed for decades, and now he is delivering on that pledge.

Pakistan condemned India’s moves. Pakistan’s prime minister, Imran Khan, called on President Trump to follow through on an offer he made two weeks ago to mediate the Kashmir dispute.

What are the roots of the conflict?

In 1947, the sudden separation of the area into Pakistan and India prompted millions of people to migrate between the two countries and led to religious violence that killed hundreds of thousands.

afghanistan

Gilgit-Baltistan

Controlled by Pakistan

line of control

Controlled by India

Suicide bombing

Jammu and Kashmir

Left undecided was the status of Jammu and Kashmir, a Muslim-majority state in the Himalayas that had been ruled by a local prince. Fighting quickly broke out, and both countries eventually sent in troops, with Pakistan occupying about one-third of the state and India two-thirds.

The prince signed an agreement for the territory to become part of India. Regional autonomy, which was formalized through Article 370, was a key inducement.

Despite efforts by the United Nations to mediate the Kashmir dispute, India and Pakistan continue to administer their portions of the former princely territory while hoping to get full control of it. Troops on both sides of the so-called “line of control” regularly fire volleys at each other.

Muslim militants have frequently resorted to violence to expel the Indian troops from the territory. Pakistan has backed many of those militants, as well as terrorists who have struck deep inside India — most brutally in a four-day killing spree in Mumbai in 2008, which left more than 160 people dead.

What is Article 370?

Article 370 was added to the Indian constitution shortly after the partition of British India to give autonomy to the former princely state of Jammu and Kashmir until a decision was made about its rule. It limited the power of India's central government over the territory. A related provision gave state lawmakers the power to decide who could buy land and be a permanent resident -- a provision that irked many non-Kashmiris.

Although it was intended to be temporary, Article 370 says that it can only be abrogated with the consent of the legislative body that drafted the state constitution. That body dissolved itself in 1957, and India's Supreme Court ruled last year that Article 370 is therefore a permanent part of the constitution.

The Modi government disagrees and says the president of India, who is beholden to the ruling party, has the power to revoke the article.

Why did the conflict heat up this year?

The immediate cause was the Feb. 14 suicide bombing by a young Islamic militant, who blew up a convoy of trucks carrying paramilitary forces in Pulwama in southern Kashmir.

Indian aircraft responded to that attack by flying into Pakistan and firing airstrikes near the town of Balakot . The Indian government claimed it was attacking a training camp for Jaish-e-Mohammed, the terrorist group that claimed responsibility for the bombing.

The next day, Pakistani and Indian fighter jets engaged in a skirmish over Indian-controlled territory , and Pakistani forces downed an Indian aircraft — an aging Soviet-era MiG-21 — and captured its pilot. It was the first aerial clash between the rivals in five decades .

Pakistan quickly returned the pilot , easing the diplomatic tensions. But Mr. Modi exploited a wave of a nationalist fervor over the Pulwama attack as part of his re-election campaign that helped his Bharatiya Janata Party win a sweeping victory .

Pakistan’s prime minister, Imran Khan, was elected last year with the backing of his country’s powerful military, and he wants to show that he can stand up to India, even as his country’s economy is so weak that he sought bailouts from Saudi Arabia and China.

Will the United States and other global powers get involved?

On July 22, Mr. Trump hosted Mr. Khan at the White House. Although the meeting was focused on how to end the war in Afghanistan, Mr. Trump told reporters that Mr. Modi had asked him to help mediate the Kashmir dispute . Mr. Khan welcomed his involvement. The Indian government denied making any mediation request and has long insisted on direct negotiations with Pakistan to resolve the dispute.

Under Mr. Trump, American foreign policy has shifted away from Pakistan, a longtime recipient of American aid, toward India, which the administration views as a bulwark against China’s rising influence in Asia.

China, meanwhile, has become a close ally and financial patron of Pakistan . The Chinese government recently urged India and Pakistan to settle their conflicts through bilateral discussions. China shares a border with Jammu and Kashmir state, and India and China still do not agree on the demarcation line.

What is likely to happen next?

The constitutional changes, issued through a presidential order, could face legal challenges. Last year, India’s Supreme Court ruled that Article 370 could not be abrogated because the state-level body that would have to approve the change went out of existence in 1957.

“My view is that this presidential notification is illegal,” said Shubhankar Dam, a law professor at the University of Portsmouth in Britain and the author of a book on executive power in India. “The question is one of jurisdiction: Does the government of India have the power to do this?”

Pakistan, for its part, said it will “exercise all possible options to counter the illegal steps” taken by India.

Mr. Modi’s moves to integrate Kashmir into India are likely to be popular in much of the country. But there is widespread panic in Kashmir, where there have been decades of protests against Indian rule.

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SC Verdict on Article 370- Explained Pointwise+ Infographic

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The Supreme Court in a 5-0 unanimous ruling upheld the Centre’s abrogation of Article 370 of the Constitution. Chief Justice of India (CJI) D Y Chandrachud presided over the Bench, which also comprised the four other most senior judges of the court- Justices S K Kaul, Sanjeev Khanna, B R Gavai, and Surya Kant.

What is Article 370 of the Indian Constitution?

Article 370- Article 370, was added to the Indian constitution, as a ‘temporary provision’, on October 17, 1949. It permitted the state of J&K to draft its own Constitution. The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state. It restricted the Indian Parliament’s legislative powers in the state.

Article 35A- Clause 3 of the article 370 gave the President of India the power to amend its provisions and scope. Article 35A stemmed from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly. Article 35A empowered the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

Presidential Proclamation Abrogating Article 370- On 5th August 2019, President of India in the exercise of the powers conferred by Clause (1) of Article 370 of the Constitution had issued the Constitution (Application to Jammu and Kashmir) Order, 2019. The laws of the Parliament will now be applicable to the state of Jammu and Kashmir.

What will be the benefits of the SC judgement on Article 370?

1. Promotion of National Integration- Allowing a separate constitution, flag and powers to Jammu and Kashmir had created a sense of separate identity among the people of the state. This had been used to misguide youth and create a demand of separatism among them. The verdict paves a way for the National Integration of J&K with rest of India.

2. Aid in the fight against Terrorism- Owing to cross border terrorism, around 42 thousand people have lost lives in the state. The special status was considered an impediment in fight against terrorism. The verdict has bolstered the powers of the central government in its fight against terrorism in the valley by allowing the application of stringent anti-terror laws like UAPA.

3. Reduction of Corruption and graft- Article 370 resulted in poor anti-graft architecture in the state of Jammu and Kashmir. Anti-corruption agencies could not enter the state, which resulted in massive corruption, money laundering and hawala transactions. With the SC seal on the abrogation of Article 370, the PMLA and FEMA act can be stringently applied.

4. Promotion of economic development- Due to the application of Article 370, the land in the state could only be sold and bought by the permanent residents of the state. As a result, large businesses houses did not invest in the region owing to land concerns. The final stamp of SC, on Article 370, will attract greater investment in the state of J&K.

5. Effective implementation of affirmative policies- Various affirmative legislations such as Right to Education, Right to Information were not available to the citizens of Jammu and Kashmir. Also, the reservations benefits, to OBCs, SCs, STs were not available to the marginalised sections of the state. The SC Verdict will help in effective implementation of these affirmative policies.

What challenges can emerge with the SC verdict on Art 370?

1. Misuse of the President Rule- The majoritarian governments at the centre can misuse the President’s rule to bring irrevocable changes to the states like bifurcation of the state without consulting the state legislative assemblies. The president’s rule was imposed and the Parliament used its power to bifurcate of the state of J&K into two UTs of J&K and Ladakh, without consulting the state legislative assembly.

2. Undermine the federal principles- The Parliament can use its amending powers to undermine federalism and democratic processes. For ex- A backdoor amendment to an article of the Constitution by amending another article. Article 367 was amended to give effect to abrogation of Art 370.

3. Threat to Regional Identity- One of the primary rationales behind Article 370 was to respect and preserve the unique identity, history, and culture of the state of Jammu and Kashmir. This can raise insecurity among the regional communities being accorded special treatment or protection

4. Harmonious Relations- The provision was intended to promote harmonious relations between the region of Jammu and Kashmir and the rest of India. The separatist elements can use this verdict to fuel separatism and radicalism in the state of Jammu and Kashmir.

5. Against the principle of Asymmetric federalism- Asymmetric federalism is enshrined in the Indian constitution, with some special provisions granted to certain states like North-Eastern States and Socio-economically backward states (Art 371). The Verdict has impinged upon the settled principle of asymmetric federalism.

What Should be the Way Forward?

Since Art 370 has become a thing of the past, with SC upholding the abrogation of Art 370, we must look forward to restoring normalcy in the state of Jammu and Kashmir.

1. Set up Truth and Reconciliation Commission- The government of India must set up the Truth and Reconciliation Commission, as directed by the SC, to look into alleged violations of human rights by both state and non-state actors in J&K. It should be based on a dialogue and not become a criminal court.

2. Conduct Elections and restore the statehood of J&K- The Central government must ensure normalcy in the Valley for peaceful conduction of democratic elections and restoration of the statehood of J&K.

3. De-radicalization- More aggressive attempts must be made towards de-radicalization of youth in the valley.

4. Check the misuse of AFSPA- AFSPA provisions must be withdrawn in a phase bound manner from the areas which attain normalcy.

5. Focus on Development- The imminent focus of the government must be on promoting inclusive economic development of the region by effective implementation of the affirmative policies of the government.

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Society and Politics of Jammu and Kashmir pp 53–77 Cite as

Article 370 and 35A: Origin, Provisions, and the Politics of Contestation

• Aijaz Ashraf Wani 2 ,
• Imran Ahmad Khan 2 &
• Tabzeer Yaseen 3  
• First Online: 28 November 2020

351 Accesses

In August 2019, the Indian government revoked the autonomous status of Jammu and Kashmir (J&K), protected by Articles 370 and 35A of the Indian constitution. The special provisions had been in place since October 1947, when its ruler acceded to India through a conditional Instrument of Accession. Although there has been significant media coverage of the abrogation and subsequent military siege in Kashmir, there remains scant awareness regarding the significance of the articles for Kashmiris. This chapter provides a historical account of how the articles came into existence and discusses why they were so highly contested. It allows the reader to appreciate better the implications of the abrogation of J&K’s special provisions and why such political fallout has come in its wake.

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Wani, A.A., Khan, I.A., Yaseen, T. (2021). Article 370 and 35A: Origin, Provisions, and the Politics of Contestation. In: Hussain, S. (eds) Society and Politics of Jammu and Kashmir. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-56481-0_3

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Explainer: What are Articles 370 and 35A?

Under the Article IoK was recognized as an independent state

• with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
• (ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii); (b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament. Explanation.-In this article, the expression "law in force" has the same meaning as in article 372.

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