Special Status scrapped- History created Author By: Himani Mittal Co-Author Tarranum Madan | Volume II Issue II |

ABSTRACT

Article 370 was inserted in the Constitution of India by the Constituent Assembly in order to provide special status to the state of Jammu and Kashmir. In accordance with this provision, the state had its own constitution and penal laws which was known as Ranbir Penal Code (RBC). This special provision had always remained in question and had developed as a political issue. Due to this provision, there exists an issue that whether principle of federalism, dignity and, identity which is enshrined in the preamble of the Constitution, which recognizes India’s pluralism and diversity prevails over the principles of equality, dynamism, and separation of powers, which also form an integral part of the Constitution or is it accepted vice versa or do they need to be construed harmoniously? This controversy was assumed to have ended when the Government of India had scrapped this provision and abrogated the special status granted to the state of Jammu and Kashmir. But now, this move has been challenged before the Supreme Court of India on the ground that it violates the basic mandate of the Constitution. The legal validity of this move is the subject matter of this article.

Keywords:- Abrogation of special status, Jammu and Kashmir, democracy, federalism, equality

1. INTRODUCTION

Jammu and Kashmir was a princely state under the suzerainty of British Monarch and was ruled by Maharaja Hari Singh. When India gained independence from the UK on 15^th August 1947, two new dominions were formed which were India and Pakistan. At that time, two legal documents were given force under the Government of India Act, 1935 which were Instrument of Accession and Standstill agreements[1]. The princely states had to decide to accede to either of the one dominions or remain independent. Most of the states acceded and later on signed merger agreements but the state of Jammu and Kashmir chose to remain independent because the majority population of the state was Muslim and they would be unhappy to accede to India and in case they acceded to Pakistan then the Sikhs and Hindus of the state would have become vulnerable and they signed standstill agreement with Pakistan. After that on 22^nd October 1947, Pakistan Muslim tribes backed by the Pakistan Government attacked the state but J&K did not have enough resources to defend itself and they asked for military assistance from India which India provided on the condition that it accedes to India. Maharaja Hari Singh signed the Instrument of Accession[2] which provided only limited powers to India’s Parliament to legislate only on matters of Defence, External Affairs and Communications and also stated that it is not subject to any future Constitution of India. Subsequently, the Constitution of India came into effect on 26^th January 1950 and it contained a provision in the form of Article 370 in part XX1 which deals with ‘temporary, transitional and special provisions’ which granted special status to the state of Jammu and Kashmir and this was made on account of ‘special circumstances’ that existed there. This state had its constitution which was signed into law on 26^th January 1957[3].

III. APPLICABILITY OF PROVISIONS OF INDIAN CONSTITUTION

• The state had its constitution and ‘permanent residents’ of Jammu and Kashmir were provided special rights in a state with regards to employment, acquisition of immovable property, settlement, etc. under Article 35-A.
• Union legislature had very limited jurisdiction as it could only make laws on subjects contained in Union list and on some subjects of the concurrent list but the residuary powers and powers to make preventive detention laws rested in the state government only.
• Any action of the Union Legislature or Union Executive which results in alteration of the name of territories or an international treaty or agreement affecting the disposition of any part of the territory of the state requires the consent of the State Legislature or the State Executive to be effective. The Union had no power to suspend the Constitution of J&K.
• The Union of India had no power to declare Financial Emergency under Article 360 in the state. The Union can declare emergency in the state only in case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall affect concerning the state subject to certain conditions.
• In December 1964, Articles 356 and 357 were extended to the state.
• Directive Principles of the State Policy, Fundamental Duties did not apply 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; hence the Fundamental Right to property is still guaranteed in this state.
• The High Court of J&K can’t declare any law unconstitutional and it can’t issue writs except for the enforcement of Fundamental Rights[4].

1. ABROGATION OF SPECIAL STATUS

On 5^th August 2019, Article 370 was scrapped by presidential order and subsequently Jammu and Kashmir (reorganization) bill, 2019 was introduced by Amit Shah which bifurcated the state of Jammu and Kashmir into 2 union territories that were Jammu and Kashmir and Ladakh and this bill was passed by both the Houses of Parliament. Section 144 was imposed in the district and political leaders Omar Abdullah, Mehbooba Mufti, Usman Majid, and M.Y.Tariagmi were placed under house arrest. This move was backed by a series of events to avoid any kind of conflict. On 27^th July the government deployed 100 additional companies of security forces on the pretext that it is being done to maintain law and order and it is just a counter-insurgency aid. On August 1, an additional 25,000 personnel were deployed which created speculation although the governor said that ‘everything is normal’. On 2 August Amarnath Yatra was suspended and pilgrims were asked to curtail their stay there and even working of schools and colleges was suspended till further orders. On August 4, satellite phones and closed group mobile phones were distributed in Kashmir among security officials and the entire communication network in J&K was snapped.

1. SCRAPPING OF ARTICLE 370 – A THREAT TO DEMOCRACY?

The state of Jammu and Kashmir was under President’s rule which is imposed by Article 356(4) since 19^th December 2018. Under President’s rule, the power of state government is exercised by the governor which is an appointee of the President, the legislature vests in the Parliament and suspension of provisions of the constitution would apply to the body or authority of the state. Article 370 provided special status to the state of J&K and Article 370(1)(c) states that ‘Article 1 and Article 370 apply to J&K’ and Article 370(1)(d) provides that ‘other provisions of constitution may be made applicable to the state of J&K with ‘modifications’ which the president may by order specify and it must be in concurrence with the state government’. Article 370(3) states that ‘President can issue a notification making the whole of Article 370 inoperative if such a recommendation is made to the President by the Constituent Assembly of J&K’. Constituent Assembly of J&K was dissolved in 1957 and it did not make any recommendation or amendment to abrogate Article 370 and hence after this the Supreme Court has stated in various decisions that Article 370 has become a permanent part of the constitution as the body which had the power to scrap it has been dissolved. On August 5, 2019, a presidential order was passed which stated:-

1. Applying Article 370(1)(d), all the provisions of the Indian Constitution are applicable to state to J&K and as the state is under President’s rule so the concurrence with the state government was dispensed with.
2. Article 367 is the interpretation clause of the constitution. A ‘modification’ was added by inserting Article 367(4)(d) which stated that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. By applying this interpretation, Article 370 was abrogated as the power vested in the State Assembly of J&K and as it was under President’s rule, so it vested in the Parliament and hence Article 370 was scrapped.

Seeing this action from a legal point of view, it can be said that there is a possible abuse of power beyond provided by the constitution and this can be justified through the following questions:-

1. The president does not have the power to ‘modify’ or ‘amend’ Article 370 and by modifying Article 367, it has attempted to do indirectly what it cannot do directly and due to this, two conflicting provisions exist now that are 370(3) and 367(4)(d) and the question is that according to the principles of interpretation of statutes, which one should prevail?
2. The President has exceeded the confines of the power delegated to him under Article 370(1)(d). It was settled in the Keshavananda Bharati[5]case which established the Basic Structure doctrine that a constitutional functionary cannot use the powers given to him under the Constitution to do to the Constitution that the Constitution never intended for him to do.
3. Article 370(1)(d) only authorizes the president to make applicable those provisions which are already existing but the president introduced a new provision in form of Article 367(4)(d) and applied it to the state of J&K. How far it is legally valid is a mooted question.
4. The President’s rule was imposed on account of the collapse of state machinery and hence there was an emergency. So can an emergency be taken as a substitute to ‘concurrence with state assembly of J&K’ to take key decisions regarding the state which will alter its boundaries and functioning? Is it against the principle of federalism especially knowing the fact that J&K had special status?
5. Change in Article 367(4)(d) is to be taken as ‘modification’ for purposes of State of J&K or ‘amendment’ to the constitution?

So, the answer to these legal questions would justify whether the move to scrap Article 370 was an attack on democracy or not.

1. INTERNATIONAL RESPONSE- SUPPORT AND CRITICISM

Abrogation of special status invited a furious response from Pakistan with China as an accomplice. It tried to attract the attention of the international community to this move so that it can be overruled but nations like France, Russia, and the US came in support of India saying that it was an ‘internal matter’ and has to be solved bilaterally. Though there arose some confusion when on July 22, US President Donald Trump met Pakistan’s prime minister Imran Khan and said that India has asked him to play the role of mediator in Kashmir issue but it was politely rebutted by the External Affairs Ministry of India by saying that ‘any discussion on Kashmir, if at all warranted, will only be with Pakistan only bilaterally’ and the US subsequently agreed to this stand. The matter is also taken to ICJ and a closed-door meeting was organized by UNSC to deliberate on the Kashmir issue. The response came in support of India as they even recommended to solve it bilaterally.

VII. CONCLUSION

The modus operandi that was opted to scrap Article 370 is disputed but if we look at the reasons for its abolishment, it can be concluded that it is beneficial. Now, all the Indian laws including property related laws, penal laws, Right to Information and Education are applicable to the newly formed territories, Jammu and Kashmir (second amendment) bill, 2019 was also introduced which provided 10% reservation to SC, ST and OBC of J&K which would provide equal opportunities, corruption was rampant which will be eradicated, anyone can buy land in J& K and hold government positions, there would be ease of doing business, ease of residence, better employment opportunities, benefits like free books, transport, scholarships, and grants is accessible to them and a model of harmony, prosperity, and gender equality will prevail. Though economic benefits are lucrative, does it prevail over free will? As written by Francis Fukuyama, ‘a humiliated group seeking restitution of its dignity carries far more emotional weight than people simply pursuing their economic advantage’.

[1]A standstill agreement was an agreement signed between the newly independent dominions of India and Pakistan and the princely states of the British Indian Empire before their integration in the new dominions. The form of the agreement was bilateral between a dominion and a princely state. It provided that all the administrative arrangements then existing between the British Crown and the state would continue unaltered between the signatory dominion (India or Pakistan) and the princely state until new arrangements were made.

[2] Instrument of Accession executed by Maharajah Hari Singh on October 26, 1947 (Sept. 14, 2019, 1:54 PM), http://www.jammu-kashmir.com/documents/instrument_of_accession.html.

[3] Swati Mathur, Integral review of Article 370 overdue, but needs cooperation not confrontation: Congress leader Karan Singh (Sept. 14, 2019, 2:07 PM), https://timesofindia.indiatimes.com/india/Integral-review-of-Article-370-overdue-but-needs-cooperation-not-confrontation-Congress-leader-Karan-Singh/articleshow/35733023.cms.

[4] Surya Bhan Singh Billawria, Constitutional position of Jammu and Kashmir (Sept. 15, 2019, 9:40 PM),   http://www.legalserviceindia.com/article/l281-Constitutional-Position-of-Jammu-and-Kashmir.html.

[5] Keshavananda Bharati v State of Kerala, (1973) 4 SCC 225 (India)