Highlights

  • On August 5th, 2019, BJP watered down Article 370
  • Article 370: only allowed India to help J&K with defence, finance and foreign affairs
  • SC will deliver verdict on govt’s parliamentary action on Dec 11

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The saffron party’s manifesto for decades had listed Syama Prasad Mookherjee's dream and on August 5, 1947, they achieved it for the founder of BJP's parent party Jan Sangh

Article 370 verdict: how Jammu and Kashmir’s special status was watered down

On August 3, 2019, a security advisory announced the cancellation of the annual Amarnath Yatra that draws tens of thousands of Hindu pilgrims to the cave shrine in south Kashmir. The ostensible reason that Satya Pal Malik, the New Delhi-appointed governor of Jammu and Kashmir, put out was a terror threat.

In the following 24 hours, the administration invoked Section 144 of the IPC, which bars the assembly of four or more people in public spaces. Internet and telecom signals on phones vanished the same day ensuring a communication blackout in the landlocked Himalayan region.

Simultaneously, Delhi-based media reported the deployment of an additional 10,000 security force personnel in the world’s highest militarised zone. On the same day, most local mainstream leaders, including former chief ministers Mehbooba Mufti and Omar Abdullah were restricted to their homes in Srinagar; happenings had cast their shadows, all eyes were now on a Parliament session scheduled for August 5 in Delhi.

Speaking in the Lok Sabha as Opposition leaders raised a hue and cry about the whereabouts of National Conference President and their lower house colleague Farooq Abdullah, Union Home Minister Amit Shah announced the removal of the "obstacle of Article 370" that the BJP leader said was ‘stalling the development’ of the only Muslim majority state in the country.

Announcing the scrapping of J&K's special status, Shah later told members of Rajya Sabha, "Article 370 had ruined Jammu and Kashmir. It had to be removed to integrate the region with the rest of India and develop it."

After returning to power with a thumping majority, the Narendra Modi government fulfilled the dream of BJP’s founding father Syama Prasad Mookerjee. The saffron party’s manifesto for decades had listed his dream prominently in the election manifestos. The BJP’s 2019 manifesto was no different; it had noted that the party will invoke steps, "to overcome all obstacles that come in the way of development of Jammu and Kashmir”.

What happened on August 5th in 2019?

After days of uncertainty in the state, where the administration had imposed a security lockdown and had cut all telecommunications, there were speculations that Article 35A of the Indian constitution, which did not allow Indians from outside J&K to buy or sell property in the state, would be scrapped.

However, Amit Shah sprang a surprise in the Parliament as he announced the watering down of Article 370 of which 35A was a part. These articles have been the basis of the complex relationship between India and Kashmir since July 1949 -- when it was adopted in the constitution.

The government also moved to break up the state into two smaller Centre-administered territories. The Modi government separated the Buddhist majority Ladakh (without legislature) from Jammu & Kashmir (with legislature) to create two Union Territories.

What is Article 370?

Article 370, as per the constitution, is a “temporary provision” that keeps J&K out of the purview of the Indian Constitution, barring defence, finance and foreign affairs. It allowed J&K to draft its own constitution, have its own flag and penal code and restricted the Indian Parliament from interfering in matters related to the state.

How was special status watered down?

The President of India Ram Nath Kovind used the Constitutional Order 272 to water down the Article 370 using the provision itself. The sub clause 3 of Article 370 that read, "Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: provided that the recommendation of the constituent assembly of the state shall be necessary before the president issues such a notification" was used.

While the section states that the recommendation of the constituent assembly of the state is mandatory, there was no active constituent assembly at that time in the state.

Jammu and Kashmir’s constituent assembly dissolved itself on 25 January 1957 -- without recommending either abrogation or amendment, leaving the status of the provision on a cliffhanger, and the state assembly took over its functions.

Since Mehbooba Mufti's government lost majority in November 2018, governor's rule was imposed. And, in the absence of the elected state government, the parliament was directly responsible for the decisions on the state and the Modi government effectively used it to revoke the special status.

Why was it done?

While it was a promise that BJP rushed to deliver as soon as it came back to power in 2019, the removal of the special status of Jammu and Kashmir has remained central to it. Just like its parent party Jan Sangh and Hindutva fountainhead Rashtriya Swayamsevak Sangh, BJP has remained focussed on “complete integration”. Syama Prasad Mookerjee, the founder of the Jan Sangh had famously once said, “One cannot have two constitutions, two Prime Ministers and two flags” and BJP fulfilled their founder’s dream on August 5th, 2019.

What do critics say

Critics say the resolution, which is a decision of permanent character for the state, was passed by the parliament when the state was under President’s rule – which is temporary and a stand in until an elected government is restored – is problematic. They point out that the use of a subsection under the Article along with Constitutional order (272- changes the reference of Constituent Assembly to Legislative Assembly, 273-sealed the abrogation of the Article 370) that too in the absence of an elected state assembly through governor – who represents the Centre and not the state – makes it legally and constitutionally dubious.

On December 11, the Supreme Court will deliver verdict on a batch of petitions that have listed the above grounds to contest Modi government’s parliamentary action.

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