By: Astha Sharma of West Bengal National University of Juridical Sciences.
It’s not the land which matters, but the people – Rabindranath Tagore
India and Jammu & Kashmir have always had a strained and weird relationship with Maharaja Hari Singh reluctant to accede to India and remaining a neutral party, but with Pakistan’s attempt to take over J & K, an instrument of accession was undertaken and J and K became an integral part of the Indian territory. In 1954, the Presidential Order was passed which brought into existence Article (hereinafter referred to as “Art.”) 370 which gave special status to the state for the temporary time being.
There have been various attempts after that to abrogate the provision and integrate J & K with India but they have mostly failed because of lack of majority in Parliament and then the Supreme Court in 2017 declared how this provision has become permanent with the course of time. However, on Aug 5, 2019, Modi-led government abrogated Article 370 overnight and integrated Kashmir with India.
The following paper is an attempt by the author to understand the timeline and the constitutional and legal implications of the same and conclude about the effect of this decision on the residents of the valley. Part I discusses a series of events and their constitutional implications. Part II discusses the constitutional and legal breaches due to the abrogation of the provision.
Part III discusses the aftermath of the abrogation and the status of residents along with the discussion on the same from law and oppression aspect. Part IV covers the arguments taken by individuals supporting the abrogation and the process associated with it and the author has made an attempt to differentiate between the issues cited by supporters and the issue at hand. Part V attempts to summarize the arguments.
II. Timeline of the Disaster
Article 370 of the Indian Constitution which was drafted in Part XXI of the Indian Constitution and was introduced by a Presidential Order passed in 1954.1 Under this Article, Jammu and Kashmir was given special status and had its own constitution and laws passed by the Parliament which were applicable to the state only on the concurrence of the State Government.
The President had the power under this provision to decide as to which provisions of the Indian Constitution will be applicable to the state, however, the assent of the state was necessary for the laws to be applicable. Further, Article 35A of the Indian Constitution2 granted certain special rights and privileges to the permanent residents of the state3 like government jobs, right to scholarships, settlement in the state, etc.
The provision also had protective laws such as a bar on outsiders buying property in the State and women marrying non-Kashmiris and losing their property rights. The clause specified that any alteration in the provision would be on the recommendation of the Sadar-i-Riyasat4 or the Constituent Assembly.
As per Art 370(3), all the decisions about modification, alteration or abrogation of the provision was to be done by the President by issuing a public notification with the consultation of the Constituent Assembly. This clause was supposed to be a temporary provision, however, any decision on its continuance was to be taken by the Constituent Assembly of the state which dissolved itself in 1957 after drafting the Constitution.5
No decision was taken on the provision by Constituent Assembly before dissolving itself, thereby granting permanent status to the provision. A new constituent assembly has to be convened to take some decision in this regard if it was necessary to be taken to maintain the sanctity of the provision.6
The BJP-NDA led government during their 2014-2019 tenure attempted to integrate Jammu and Kashmir into the Indian territory by abrogating Art. 370. However, the Supreme Court in the case of State Bank of India v. Santosh Gupta7 established that Art. 370 is not a temporary provision and has acquired the status of permanent status in the course of this time.
However, in this tenure, on August 5, 2018, the government proposed abrogation of Art. 370 of the Indian Constitution further proposing Jammu and Kashmir Reorganisation Bill, 20198 (hereinafter referred to as “Reorganisation bill”) which divided Jammu and Kashmir into 2 union territories- Jammu and Kashmir and Ladakh, the former will have a legislative assembly while the latter will not have the same.
The Presidential Order was passed by President Ram Nath Kovind. For their convenience, the government also added certain “Interpretation clauses” to Art. 367 of the Indian Constitution9 wherein the reference to “Constituent Assembly” was to be read as “Legislative Assembly of the State” and all the references to “Sardar-i-Riyasat” will be considered as referring to Governor of the State.10
The government used this provision as a loophole and imposed Governor’s Rule in the state which basically transferred all the powers to the governor under Prime Minister, who abrogated the provision without consultation with the State Government and its leaders, instead put them under house arrest to avoid any resentment.11 This was how the present government territorially integrated Jammu and Kashmir into India.
III. Democracy And The Indian Constitution Values
Looking at the process constitutionally, we see how the Government ignored Article 370(3) which talks about consultation with the Constituent Assembly and amended it as per their convenience, putting the powers under the scope of the legislative government which was never decided upon.
This Reorganization bill also affects the 1954 Presidential Order passed with regard to Jammu and Kashmir as Article 3 had a proviso12 which specified that “no bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State” and this provision was also breached as no consent or concurrence of the Legislature/State Government was taken at any point.
Instead they were locked down by imposing Sec. 144 of CrPC and President’s Rule was imposed in the entire state13 even when there were no instances or reasons to impose President’s Rule in the state which is supposed to be imposed in case of any reason for the President to believe that the constitutional machinery is broken down or for the governor to inform that he cannot handle the state functioning.14
Looking at it from basic human rights angle, the move by Centre was abrupt and was disenfranchised as it directly affected the life and sentiments of the residents whose voices were silenced and unheard. Further, it happened after a massive military build-up and the house arrest of senior political leaders, the communications shutdown in the area reveals how the democratic norms were disregarded completely by depriving them of their constitutional rights under Article 21 to live with dignity and Article 19 which talks about freedom to speech and expression.15
They were not given the right to express their opinions and views on something that affected them which basically took away their basic constitutional right, not to forget the basic international human rights as mentioned in UDHR which India is a signatory to.16 Hence this move by Centre was unprecedented and cannot be classified as a historic move as the way it was implemented was in a way a joke out of democracy and seeing it as a precedent will have various dangerous and unintended consequences.
We see instances wherein people are not allowed to leave their houses to get to the hospital, one of the mothers was crying because she had to get her child’s medicine bottled re-filled, one of the men was not allowed to pass the check-post even when he showed X-Ray of his brother who was to be taken into surgery, there have been people dying of lack of medication, ATMs are running out of cash, petrol pumps have been emptied and people are stocking up on essential supplies, there is stone-pelting and everybody is in a panic mode.17
This has been the consequence of the historic move by the Government of the country without taking into consideration how it will affect all the sections of the society.
IV. Is J&K Actually Underdeveloped or Are They Just Trying to Make it Seem so?
It has been one of the claims of the present government that integrating Jammu and Kashmir with rest of India was necessary because the former was under-developed with respect to healthcare, poverty, economic growth as compared to the rest of India and this integration will open opportunities for them.
However, if we look at the key indicators, we see that Jammu and Kashmir is ranked 3rd out of the 22 states in terms of the life expectancy with the life expectancy of73.5, in terms of the rural unemployment rate, we see it was 21st with 25 employed in 2011-12 with best being Gujarat at 3 unemployed per 1000 people and Nagaland being the worst with 151 unemployed at every 1000 people.
Its poverty rate stood at10.35% being at number 8 among all 30 states in the country and was placed 10th in infant mortality rate in 2016. With respect to economic growth, J and K’s Human Development Index (HDI) was 0.68, higher than Andhra Pradesh and Gujarat with Kerala having the best at 0.77.18 With these facts, the question really is whether Jammu and Kashmir is actually under-developed or the Centre is just using that as an excuse to integrate it within our territories.
There is no doubt that the individuals living in the valley are being treated as second-class citizens as they are being denied their basic right to equality and their voices were silenced. We can say that these individuals were targeted and they are being denied certain rights since they belong to a certain area and certain community and violence is used against them so as to mute their voices and take decisions on their behalf.
We can relate this to one of the arguments made by famous legal scholars- Iris Young19 and Harsh Mander20 wherein they talked about various forms of exclusion and oppression. Iris Young talked about various types of oppression and 2 of them were powerlessness and violence. Powerlessness is when these people have no autonomy, status or authority to participate in making decisions that affect the conditions of their living and actions and they basically lack significant power, they are situated at a place where they take orders rather than the order being given by them to others.
We can relate that to what is happening in Jammu and Kashmir as the decisions are being taken for their lives and they are not being given any power to decide for themselves. Further, she describes Violence as a form of oppression wherein it is directed to individuals just because they belong to a group or relate to certain members of the group.
In the present scenario, the Kashmiris are being targeted by the CRPF, army or the government only because they belong to a certain group and live in a certain area. Harsh Mander also reiterates the same points and defines them as the means for exclusion and marginalization of certain communities.
These are the conditions that have to be suffered by the residents of the valley as a result of the order.
V. The Status Of Kashmiri Pandits And Valmiki Caste
This section discusses two claims made in support of the abrogation of the provision and the author aims to clarify as to how they are irrelevant to the issue at hand.
On the argument that Kashmiri Pandits can return to their homeland after scrapping of Art. 370. Kashmiri Pandits were a group of Hindus residing in Kashmir valley and due to differential opinions with the Jammu Kashmir Liberation Front (JKLF) and on religious grounds of supporting Hinduism instead of Islam, there was chaos in the valley and on the night of January 19, 1990, these Kashmiri Pandits were forced to vacate their house and move out of the state or die, as a consequence of not following the order. 21
They were thrown out of their hometowns and asked to leave the state, several were slaughtered, murdered, women were raped and killed in the middle of the roads and it led to Kashmiri Pandits’ population being reduced from 3lakh-6lakh pre-1990 to 1300 in 2016 in the valley.22 It has been argued by many that the act that happened was a result of Kashmiri Muslims and hence abrogation of Article 370 is a victory for them, as they want to see them suffer and they can finally go back to their hometown.
However, it is to be questioned as to whether it assures their going back to the valley without any violence, was the deprivation of individual basic human rights of all the individuals living in valley essential so as to take the revenge from them as a result of 1990 act. It has been argued by Sanjay Tickoo, President of Kashmiri Pandit Sangharsh Samiti (KPSS) how Art. 370 is different from the exodus of Kashmiri Hindus and both should be dealt with separately.23 So the argument of Kashmiri Hindus stands nullified.
About the Valmiki caste in Kashmir who were brought during partition in 1957 was brought in so as to act as safai-karamcharis and it was argued that they were denied their basic right to choose their occupation and also they were not given the status of Permanent residents and hence they could not enjoy any of the benefits as specified under Art. 35A which was discriminatory to them.24 It is, however a constitutional issue but it still does not justify all the breaches that happened during the process and depriving residents of their civil political rights to integrate the country.
The author has aimed to discuss all the arguments and concerns that have been going around with regard to Article 370 and give a perspective as to how it is wrong and affected the section of people residing there. The paper aims to point out how the rights cannot be weighed against each other and basic rights cannot be denied to individuals in return of some development in name of integration, this basically goes against the concept of rights-based approach.25
The integration, even if necessary for further development of the country was done through illegal and unconstitutional ways and hence sets a bad precedent. There should have efforts been taken to maintain some safety guards for the process to be done smoothly without harming anybody.
Now, it is impossible to know as to whether there will be peace and development after this abrogation and only time can tell us that but we sure know that there will be some unintended consequences of this constitutional breach of action. As we say, Kashmir might be integrated physically, but you have to take efforts to integrate Kashmiris emotionally with the rest of the country. We hope that peace prevails in the valley.
The essay published does not reflect the views of Lawctopus.
 The Constitution (Application to Jammu and Kashmir) Order, 1954.
 The Constitution of India, 1950, Art. 35A.
 Defined under Article 35 A of the Indian constitution as – those who have been living there for 10 years or have acquired an immovable property in the state or have been living in the state since before 14 May, 1954; The Constitution of Jammu and Kashmir, 1956, Art 6.
 Defined as “Member of Council”.
 A.G. NOORANI, ARTICLE 370: A CONSTITUTIONAL HISTORY OF JAMMU AND KASHMIR (2014).
 Rajgopal Saikumar, An integration without integrity, THE HINDU, August 6, 2019.
 State Bank of India v. Santosh Gupta, (2017) 2 SCC 538 (per Rohinton Fali Nariman, Kurian Joseph JJ.) ; THE ECONOMIC TIMES, Article 370 not a temporary provision, says Supreme Court, April 3, 2018.
 Jammu and Kashmir Reorganisation Bill, 2019.
 The Constitution of India, 1950, Art. 367.
 Gautam Bhatia, Presidential Order amending Article 367 removed possible roadblocks in path of Article 370 revocation, FIRSTPOST, August 8, 2019.
 Editorial, Scrapping J & K’s special status is the wrong way to an end, THE HINDU, August 6, 2019.
 Supra note 1.
 Article 370 Revoked: J & K Leaders Detained, PM Modi Praises Amit Shah, THE WIRE, August 5, 2019.
 K. Madhusudhana, Authority to Recommend President;s Rule under Article 356 of the Constitution, Journal of the Indian Law Institute, Vol. 46, No. 1 125-126 (2004).
 Supra note 11.
 United Nations Human Rights, Office of the High Commissioner, What are Human Rights?, available at https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx
; United Nations, The Foundation of International Human Rights Law, available at https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html
 INDIA TODAY, Kashmir Article 370: Omar Abdullaj, Mehbooba Mufti Arrested, August 5, 2019 ; INDIA TODAY, Complete Chaos in Srinagar, people rushing to ATMs, stocking supplies: Mehbooba Mufti over terror threat, August 2, 2019 ; Instagram, Feministflowercrown, August 6, 2019, available at https://www.instagram.com/feministflowercrown/
 Vignesh Radhakrishnan & Sumant Sen, Is Jammu and Kashmir underdeveloped as stated by Amit Shah?, THE HINDU, August 7, 2019; Central Bureau of Health Intelligence, National Health Profile 2018, 49, 50, 56 (2018).
 Iris Young, Five Faces of Oppression in OPPRESSION, PRIVILIGE & RESISTANCE (2004).
 Harsh Mander & Gitanjali Prasad, Introduction to India Exclusion Report 2013-2014 in BOOKS FOR CHANGE (2014).
 INDIA TODAY, Exodus of Kashmiri Pandits: What happened on January 19, 26 years ago?, January 19, 2016.
 Col. (Dr.) Tej Kumar Tikoo, Kashmiri Pandits offered three choices by Radical Islamists in KASHMIR: ITS ABORIGINES AND THEIR EXODUS, January 19, 2015.
 Naseer Ganai, “Don’t confuse Kashmiri Pandit issue with Article 370” experts warn, MAIL ONLINE INDIA, June 16, 2014.
 Vikas Pathak, RSS think tanks speaks up for SCs in Kashmir, THE HINDU, October 14, 2015 ; Daily Excelsior, Article 35A and human rights of Valmikis, May 14, 2018.
 Kirkmann, Boesen & Martin, Applying Rights-bases approach: an Inspirational guide for Civil Society, The Danish Institute for Human Rights (2007).