(This is the first essay in a guest post series on the constitutional changes to Article 370, authored by Shrimoyee Ghosh, first published on Raiot, and reproduced here with permission.)
The dismantling of Jammu and Kashmir’s special status has been heralded as a kind of constitutional surgical strike—the clearing of an unruly and hopelessly overgrown legal tangle, in one brilliant and blinding swoop. This, we are told is our other, long delayed tryst with destiny—that of one nation united at last under one constitution and one flag. But is it really? To arrive at an answer, we must circumnavigate through the first two of our simple questions, whose answers I’m afraid are anything but. First, what was this tangled forest of Article 370 and Article 35A? And second, what exactly has been done to them?
The Tangled Forest
What is Article 370?
Article 370 is one of the provisions under Part XXI of the Indian Constitution that deals with Temporary, Transitional and Special Provisions. The Articles in this Part deal with different constitutional rights and protections for citizens of various states in the Indian Union (including, for example, Gujarat, Maharashtra, Andhra Pradesh, Sikkim and Nagaland), and about the adaptation and continuance of pre-constitutional laws and institutions such as the judiciary in post-independence India. Article 370 has been repealed almost in its entirety by the Constitutional Orders of 5 August 2019 (C.O. 272) and 6 August 2019 (C.O 273), and replaced with text that effectively dismantles the limited protection it afforded to Jammu and Kashmir in self governance, territorial integrity and collective rights to land and livelihood.
The original Article 370 incorporated into the Indian Constitution a modified form of the terms of the Instrument of Accession signed between Maharaja Hari Singh, ruler of the independent kingdom of Jammu and Kashmir, and the Dominion of India in October 1947, at the commencement of the First Kashmir War. While the Instrument itself is identical to those signed by the rulers of the 140 other princely states that acceded to India, Jammu and Kashmir was unique in being the only princely state that attempted to negotiate the terms of its accession and the protection of its sovereignty. It did so by participation in the Indian Constitutional drafting process, and thereafter through an agreement, ratified by Indian parliament, between the Indian state and representatives of Jammu and Kashmiri state called the Delhi Agreement of 1952. While the Maharaja had signed an Instrument of Accession temporarily giving over certain of his law making powers to India, unlike the rulers of the other princely states he had not signed (and never did sign) an Instrument of Merger, territorially integrating his kingdom with India. In future essays, we will return to some of the spectacular political events that accompanied this moment — massacre, insurrection, more massacres, war, truce, international diplomacy, abdication, commandeered elections, conspiracy and coup-d’etat (to name only a few) —which form the mise –en-scene of a legal history bookended by the signing of the Instrument of Accession and the promulgation of the Jammu and Kashmir Constitution (1948-1957). But for now let us turn back to Article 370.
From the Constituent Assembly Debates about the inclusion of Kashmiri representatives in the Indian Constituent Assembly and the drafting of Article 370, as well as the marginal notes to it, it becomes clear that the article was presented as a transitional measure to manage the relationship between India and Jammu and Kashmir until a final determination of the latter’s legal status. At the time of its drafting in October 1949, the United Nations was still actively intervening in the Kashmir dispute, which had first been taken to the international body by India in January 1948, in the wake of the First Kashmir War. N. Gopalswami Ayyangar, a member of the Constitutional Drafting Committee and later Minister for Kashmir Affairs, said before the Constituent Assembly: “[The Government of India has] committed themselves to the position that an opportunity would be given to the people of the State [of Jammu and Kashmir] to decide for themselves whether they will remain with the Republic or wish to go out of it. They are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.”
he contradiction in this statement, that should the people of the State indeed “wish to go out” of the Indian Republic in a plebiscite, the future Constitution of Jammu and Kashmir, its drafting process, and the “sphere of Union jurisdiction” over the state (if any) would be no business of at all of the Indian republic, was not pointed out. This is unsurprising given the widespread belief that the “entanglement” (in Ayyanger’s words) with the United Nations was a mistake, and the express desire of a large number of members of the Indian Constituent Assembly, including its President, Dr. Rajendra Prasad that the Accession be treated as “unconditional and complete.”
The final wording of Article 370 as incorporated in the 1950 Indian Constitution makes no mention of the UN processes, or Jammu and Kashmir’s divided and disputed status, where two–fifth of the territory was held by Pakistan and hence neither in India’s nor in the Maharaja’s sovereign control. Instead, it only refers to a Constituent Assembly for Jammu and Kashmir, which would be empowered to decide on the terms of its relationship to India, including the ratification of all the temporary presidential orders passed under the Article, and the future revocation of the Article itself. (In the next essay In the World I will return to the question of the legal status of the Instrument of Accession and the Jammu and Kashmir Constituent Assembly.)
Without acknowledging the dispute, Article 370 set out that Jammu and Kashmir is a constituent unit of the territory of the Indian Union of states (Under Article 1, and the First Schedule of the Indian Constitution). In accordance with the terms of the Instrument of Accession, nothing else in the Indian Constitution would apply to Jammu and Kashmir except Article 370 itself, which was understood as the constitutional incorporation of the Instrument of Accession. The insertion of this provision in the constitutional text if only to exclude its own operation, nonetheless drew a legal instrument signed by the two sovereign powers—India and Jammu and Kashmir, inexorably into the domesticating force field of Indian constitutionalism. In doing so it founded the normative framing that continues to dominate understandings of the legal position of Kashmir in the Indian public sphere today across all political lines.
Article 370 also laid down the procedures through which (i) Indian law making powers (other than on the three specified subjects of foreign affairs, defence, and communications) and (ii) Indian constitutional provisions could temporarily be applied to Jammu and Kashmir, as well as (iii) how the Article itself could partially or fully cease to operate. The procedure for doing these three things was by Presidential Declarations or Orders, that is executive decrees issued by the President, giving him/her and therefore the Union executive, extraordinary albeit temporary law making and constituent (constitution making) powers over a state. This was in violation of core Indian constitutional values of the separation of powers and federalism.
The Article stated that:
- The authority of Indian Parliament to make laws could be extended to Jammu and Kashmir by enacting a Presidential Declaration. In relation to the three specified subjects in the Instrument of Accession, the President could pass this declaration after consulting the State Government, and in all other legislative subjects after obtaining the consent (“concurrence”) of the State Government.
- Indian constitutional provisions (other than Article 1 and Article 370 which were applied by the Article itself) along with exceptions and modifications could be applied to Jammu and Kashmir by Presidential Orders, again with the consultation of the State Government in relation to the three specified subjects, and their consent in all other cases.
- Article 370 itself could be revoked in whole or part, or modified only by Presidential notification based on a recommendation of the Jammu and Kashmir Constituent Assembly.
Article 370 further stated that all such temporary expansions of the Indian parliament’s law making powers, and the application of Indian constitutional provisions to Jammu and Kashmir passed with concurrence of the State Government before the coming into being of the Jammu and Kashmir Constituent Assembly (i.e. presidential orders pertaining to subjects not specified in the Instrument of Accession), would require the ratification of the Jammu and Kashmir Constituent Assembly, once it commenced its operations. Article 370 was silent as to what would happen once the Jammu and Kashmir Constituent Assembly was dissolved, since it presumably assumed that the terms of the future relationship (including the possible abrogation of the Article) would be fully laid out in the future Constitution of Jammu and Kashmir, and no further such transitional, extra-ordinary executive power would need to be exercised by the Indian executive.
The ‘temporary’ nature of the Article was upheld by the Indian Supreme Court in its ruling in the Premnath Kaul case, which involved a challenge to the far reaching land reforms brought about by the interim administration led by Sheikh Abdullah, and enacted by proclamation of the Yuvraj Karan Singh in October 1950. The petitioner a landed zamindar who had lost his estates, contended amongst other arguments, that the royal edict promulgating the land reform law was invalid, as Article 370 of the Indian Constitution had extinguished the Maharaja’s legal status as a sovereign with powers to make laws in Jammu and Kashmir. The Court held that the final determination of the relationship of Jammu and Kashmir and India would rest with the Jammu and Kashmir Constituent Assembly, and until such time, the Maharaja (and through him the Yuvraj) continued to be a sovereign monarch with plenary powers under the old Jammu and Kashmir Constitution of 1939. Subsequent judgments of the Supreme Court, passed after the dissolution of the Constituent Assembly however depart from this view, holding that since the Jammu and Kashmiri Constituent Assembly had dissolved itself in 1957, without passing any recommendation as to the modification or abrogation of Article 370, and no other body is contemplated in the text of the Article as having this constituent power, the Article has become a permanent feature of the India-Kashmir constitutional scheme. This view has legalised the continuous use of constitutional orders to dramatically alter and undermine the nature of the sovereign constitutional relationship, rendering Jammu and Kashmir far less autonomous than other states when it comes to key areas of Centre-State relations such as the promulgation of emergencies, or the Union’s powers of legislation.
What is Article 35A?
Article 35A was a special provision applicable only to Jammu and Kashmir, inserted into the Indian Constitution using the procedure for Constitutional Amendment under Article 370, via a Presidential order passed in 1954 (The Constitution (Application to Jammu and Kashmir) Order, 1954). Besides Article 35A, this far reaching constitutional order, which is often called the Basic Order, extended a large portion of the Indian Constitution, including the citizenship provisions, the jurisdiction of the Indian Supreme Court, and the Indian Constitution’s Fundamental Rights Chapter (Part III) to Jammu and Kashmir (albeit with some significant modifications). This order was absolutely crucial to establishing the legal regime between Jammu and Kashmir and India. While it was putatively enacted to give legal form to the Delhi Agreement of 1952, it far exceeded those terms. It was passed within six months of Sheikh Abullah’s 1953 arrest, and his removal from the position of the first Prime Minister of Kashmir. All subsequent presidential orders (until the 2019 orders) have been crafted as amendments to this Basic Order, possibly to preemptively save them from a constitutional challenge, since they were passed after the Jammu and Kashmir Constituent Assembly ceased to exist in 1956, a situation that the original text of Article 370 did not contemplate. Nor did the Article lay out any procedure for the amendment of a presidential order. This Basic Order and all its subsequent amendments have been revoked in its entirety by the 2019 Constitutional Order (C.O. 272) and therefore the protection of laws relating to Permanent Residents under Article 35A too stands entirely repealed.
Article 35A was the constitutional recognition of a form of proto-citizenship rights for ‘Permanent Residents’ of Jammu and Kashmir. It stated that laws on certain subjects made by the Jammu and Kashmir State Legislature could not be challenged under Indian constitutional provisions, on the grounds that they abridged the rights (for example the right to equality, or the right to move freely) of other Indian citizens. The Jammu and Kashmir State legislature was therefore exclusively empowered to pass laws and regulations in relation to certain subjects without judicial review by the Indian Supreme Court. These matters were: (i) the definition of ‘Permanent Residents’, (ii) rights to acquire immoveable property in Jammu and Kashmir, (iii) rights to settle in Jammu and Kashmir, (iv) rights to employment in the State Government, and (v) right to scholarships and government aid for education.
The concept of Permanent Resident, incorporated in Article 35A and the Jammu and Kashmir Constitution, 1957, draws from a long history of State Subject rules and notifications enacted by the Dogra Maharajas, passed in the first three decades of the 20th Century. This was a response to agitations by his subjects for citizenship rights and protection of their lands, educational opportunities and livelihoods against foreigners from the Punjab and elsewhere. The Jammu and Kashmir Constitution, 1957 defines a Permanent Resident of the state as an Indian Citizen who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state.” The qualification of Indian citizenship was necessary since the state subject law otherwise applied to all residents of Jammu and Kashmir including those in Azad Kashmir, Gilgit and Baltistan. The Constitution has several other provisions pertaining to Permanent Residents, including sections, which preserve pre-constitutional service conditions and posts, and disallow non Permanent Residents from becoming members of the state legislature, or being appointed to government employment.
The state legislature and executive has over the years passed many laws, bye-laws and government orders, protecting Permanent Residents’ exclusive rights to buy, sell and own property, preventing alienation of lands to non Permanent Residents and in matters of state employment, healthcare, higher education, state compensation schemes, voting and standing for elections. The Jammu and Kashmir state legislature also has the ability to alter the definition of Permanent Residents or modify the privileges applicable to them through a law passed with two-thirds majority. Neither Article 35A, nor the Jammu and Kashmir Constitution, 1957 contain any reference to the gender of Permanent Residents, or legal disabilities of women Permanent Residents who marry non Permanent Residents, though this has been widely cited as a reason for the removal of Article 35A, and was also one of the grounds of its challenge in the Supreme Court. I will discuss the ‘equality’ justifications put forward by supporters of the amendments including gender and caste discrimination in the last essay in this series. For now, suffice to say that the constitutional protection accorded to these laws under Article 35A has been removed with the abrogation.
The Lightning Strike
Since the in-built procedural protections with regard to Article 370 made it fairly robust and difficult to directly amend or repeal, the Indian government devised a circuitous, three–step route to achieve its ends. Constitutional experts have suggested that the Parliament should have adopted the ordinary amendment procedure laid down in Article 368 of the Indian Constitution, instead of this “back door” method. However, this view does not take into account the fact that the Basic Order of 1954 provided that Constitutional Amendments to the Indian Constitution would not apply to Jammu and Kashmir, unless extended by Presidential Order. It would not have been legally sound to have directly repealed Article 370 altogether, as it is the basis through which Jammu and Kashmir is incorporated into Indian Union in the first place. Abrogating it completely, without instituting a new basis of the relationship through the substituted wording would mean dissolving the relationship itself. The new language of the Article, dismantles the protections and procedures of the Article, and enacts the application of the entirety of Indian Constitution to Jammu and Kashmir.
The Union Government used Article 370(1)(d) relating to Presidential orders for Constitutional Application/Amendment to enact C.O. 272, on 5 August 2019, applying provisions of the Indian Constitution to Jammu and Kashmir. Since Jammu and Kashmir was under President’s Rule and there was no popularly elected government or Council of Ministers in place, the concurrence of the State Government required under Article 370 was read to mean the concurrence of the Governor alone. This had been done several times in the past as well to apply constitutional provisions to Jammu and Kashmir, most recently in March 2019 to promulgate an ordinance relating to reservations in government jobs for border residents. The first C.O. does three things:
- It over-rules the Constitutional Order of 1954 (The Basic Order) and all its amendments;
- It applies all the provisions of the Indian Constitution to Jammu and Kashmir;
- It amends Article 367, which is the Interpretation provision of the Indian Constitution, designed to help resolve ambiguities in meaning. A newly inserted clause, Article 367(4), states that as applied to Jammu and Kashmir (a) The words “this constitution” will mean “this constitution as applied to Jammu and Kashmir”
(b) The words “Sadr i Riyasat” (The indirectly elected Constitutional Head under the Jammu and Kashmir Constitution, also recognized in the Indian Constitution, will mean the Governor), and that references to Government will mean Governor acting on the advice of his Council of Ministers. These changes had already been amended through Constitutional Orders in 1965, but since the Basic Order and all its amendments had been repealed, the language had gone back to the original text
(c) Most crucially that in Article 370(3) relating to the procedure for cessation of operation of Article 370, “Constituent Assembly” will mean the “State Legislative Assembly.”
The Union Government then used the new meaning of “Constituent Assembly” in the procedure under Article 370(3) for abrogation of Article 370 to pass a Statutory Parliamentary Resolution recommending that the President make a public notification replacing the existing Article 370, with text that stated that the entirety of the Indian Constitution would apply to Jammu and Kashmir, notwithstanding any “law, document, judgment, ordinance, order, bye- law, rule, regulation, notification, custom or usage […] or any other instrument, treaty or agreement,” thus effectively eviscerating the Article. In his speech to the Rajya Sabha, Home Minister Amit Shah explained that since President’s Rule under Article 356 (as modified and applied to Jammu and Kashmir by Constitutional Orders) was in place, all powers of the State Legislative Assembly was now vested in the Indian Parliament. In these circumstances and since the Constituent Assembly, which was the only body empowered to abrogate or amend Article 370 had been replaced by the State Legislature (through C.O. 272), the Union Parliament could pass such a resolution.
Along with this Statutory Resolution, the Home Minister also tabled Jammu and Kashmir (Reorganisation) Bill, 2019 making Jammu & Kashmir a Union territory with a Legislative Assembly and Ladakh a Union Territory without a Legislative Assembly, effective from 31 October 2019. This law would have earlier run afoul of the Basic Order, which disbarred the operation of Article 3 of the Indian Constitution, which allows the Union Government to modify the boundaries of any state, in Jammu and Kashmir, thus preserving its territorial integrity.
The Home Minister also tabled the Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019 amending the Jammu & Kashmir Reservation Act 2004 to allow for reservations for people from border areas, based on an earlier ordinance promulgated by the Governor of Jammu and Kashmir in March 2019. Both bills were unanimously passed in both houses.
The Union Government then passed another Constitutional Order (C.O. 273) dated 6 August 2019, which was a public notification formally effectuating the changes set out in the Parliamentary Resolution, ceasing the operation of the original Article 370 and the Basic Order. It decreed that notwithstanding all other laws, treaties and instruments to the contrary, Jammu and Kashmir would be henceforth governed by the provisions of the Indian Constitution. And with that, the deed was done.
What Remains of the Day
The full implications of this up-ending of the India-Kashmir constitutional regime will only be revealed as events unfold, and hitherto uncharted legal waters are navigated. For instance, though the change has rendered the existing laws and the Constitution of Jammu and Kashmir, 1957 vulnerable to repeal and judicial challenge on the grounds of violation of the Indian Constitution, until they are explicitly revoked, substituted by the legislature or struck down by courts, they continue to remain in force. Two flags still flew over the State Secretariat until recently, as Caravan magazine reported, and as the Jammu and Kashmir High Court upheld in 2015, a judgment that continues to be the law in force. Though the existence of the two flags caused much alarm, and the eventual lowering of the Jammu and Kashmir state flag was crowed over on television, this is without legal mandate. The Jammu and Kashmir Constitution, 1957 which instituted the separate flag (Section 144), while it may have been rendered meaningless by the constitutional legislative changes is yet to be formally struck down or invalidated in part or whole by a court of law or act of parliament. The parliament or court’s power to exercise such a constituent power, on the basis of the new Article 370, when the Constituent Assembly of Jammu and Kashmir has dissolved itself, is a matter of grave constitutional doubt, and open to further challenge.
This however does not mean nothing has changed. Under Schedule Five of the Jammu and Kashmir (Reorganisation) Act, 106 Central laws will be extended to the two new Union Territories. Out of the total 330 State laws and Governor’s Acts, 164 will continue to operate, 166 will be repealed and seven (mainly land related legislations) will be amended. The Jammu and Kashmir Constitution, 1957 has not been repealed and continues to be valid law. Police and Public order will also now become a Union subject, under the new dispensation. The Jammu and Kashmir Armed Forces Special Powers Act, 1990 and the Public Safety Act, 1978 are both included in the schedule of laws that will continue to operate. In addition, the National Security Act 1980 will also now apply to Jammu and Kashmir, perhaps adding a further weapon to the state’s arsenal of preventive detention legislations. Bars on transfer of land to non permanent residents, under the Jammu and Kashmir Transfer of Property Act, 1920 and the Jammu and Kashmir Land Alienation Act, 1938, have been removed. Ceiling on land transfers of state lands to non-permanent residents under the Jammu and Kashmir Land Grants Act, 1960 and private lands under the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 have been dismantled. The Jammu and Kashmir Land Acquisition Act, 1935 has been repealed and replaced by the central land acquisition legislation. While the J&K Industrial Policy of 2004, already allowed for leaseholds on industrial property for 90 years, the changes will allow for outright ownership and free hold of lands by private and public entities. The central Enemy Properties Act, 1968 will also now apply allowing for large-scale alienation of lands vested in the Jammu and Kashmir Custodian of Properties, lands which belong to state subjects displaced by the incomplete and unending partition of Kashmir, extinguishing further their rights to return. Elections to local bodies, already an important site of “people centric” policies of militarized governance and development that lie at the heart of India’s counter-insurgency war, are likely to become further instrumentalised. All of this is likely to usher in profound changes in land ownership and use, demography and in the nature, command structures and intensity of policing and surveillance.
It is true, as is frequently asserted, that the constitutional guarantee of legislative autonomy under Article 370 had been almost entirely hollowed out over the years by Constitutional Orders. The Jammu and Kashmiri Constitution, 1957 that in the Indian state’s view embodies the popular will of the Kashmiri people, obliterating the need for a plebiscite, is a document without its own charter of rights, something that renowned constitutional scholar A. G Noorani calls, “an utter nullity” and non est (those are some of the kinder terms). Drafted by a Constituent Assembly whose elections were rigged, whose validity was disputed by the United Nations Security Council, whose leader Sheikh Abdullah was deposed and imprisoned mid-way through the drafting process, and whose safeguards against incursions by Indian judicial, legislative and executive authorities, have been systematically disemboweled through Presidential orders, Constitutional Amendments and judgments, frequently passed in the wake of political coups, it gives little that is unique to the Jammu and Kashmiri people by way of rights, with one important exception: the rights and protections it affords Permanent Residents. The revolutionary ideals of Sheikh Abdullah’s Naya Kashmir manifesto including gender equality, right to work, and the right to education are relegated to the category of unenforceable Directive Principles of State policy.
Instead, the Jammu and Kashmir Constitution articulates through its Preamble and Section 3 the position that Jammu and Kashmir is and shall be an integral part of India. It defines this territory as “all the territories which on the fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State” thus retrospectively getting around the problem of the fact that the Maharaja was not really in control of the entirety of his kingdom when he signed the Instrument of Accession in October 1947, and enacting an integration in perpetuity, envisaged neither by the terms of Accession, nor even the Indian Constitution. Under various Jammu and Kashmir Extension of Laws Acts, scores of central laws and the jurisdiction of central agencies like the Central Bureau of Investigation (CBI) and National Investigative Agency (NIA) have been extended to Jammu and Kashmir. Besides this, the enactment of near identical laws on almost every subject, ranging from the Right to Information, to reservations to the prevention of child sexual abuse by the State Legislature had already flattened the differences between the legal terrain of Jammu and Kashmir and other states, except when they carved out an extraordinary jurisdiction for the application of special laws allowing for use of force, and impunity by police and armed forces.
Despite this hollowing and flattening, Article 370 and Article 35A have nonetheless provided shade for a lush undergrowth of laws, bye-laws, judgments and executive orders relating to higher education, administrative services, electricity laws, agricultural property, evacuee property, land revenue, tenancy, government schemes, compassionate appointments, compensation for militancy related deaths, etc. Overturning each of these through legislative or judicial action and replacing them will be no easy task, and is likely to take years, if indeed it ever happens, until which time Jammu and Kashmir will continue to be governed through the Jammu and Kashmiri constitutional provisions and laws that are, on the face of it, unconstitutional under the new regime. Over the years the state judiciary has played a crucial role in normalising impunity for human rights abuses by Indian state forces in Kashmir, yet it has been quite a fierce protector of the state’s constitution and rights of permanent residency, holding for instance, that Indian Constitutional amendments unilaterally modifying Jammu and Kashmir’s constitutional structures are illegitimate, and observing that the Jammu and Kashmir Constitution enacts a form of sovereignty with respect to property rights of Permanent Residents constituted through its own constitutional history. The change is likely to produce some unique and unresolvable legal conundrums, inconsistencies and conflicts of laws especially as the Jammu and Kashmir Constitution’s definition of its territorial boundaries is now bifurcated over two Union Territories— one with a legislature, and one without, both directly governed by the Centre, and yet with their own (unified) Constitution. Indeed the political inexpediency of entirely dismantling the land rights regime and domiciliary protections of employment, in other words the very rights guaranteed under the Jammu and Kashmir Constitution’s definition of Permanent residents and Article 35 A, are becoming increasingly obvious even to the government. An unnamed senior Indian official recently stated that the elected government of Jammu and Kashmir would decide on future land policy, including classifications and land tenures. Already Nirmal Singh of the Jammu and Kashmir BJP has said that the party will propose domiciliary protections for rights to employment. In short, while the constitutional changes are cataclysmic and seem irreversible, in the domain of the everyday, the legal conquest of Jammu and Kashmir is neither as complete nor unquestionable as celebrating members of the ladoo-distributing public would like to believe.