One day while returning to my hostel from my classes, I saw breaking news which was running on TV that the president has announced the abrogation of articles 370 and 35A. Some people were applauding this decision as a brave decision of Modi government But there were also a lot of people who were criticizing this action as an undemocratic decision. And as expected, protests started across India, especially in north India.
Slogans were echoing in the streets of Kashmir against Modi government, Kashmiris and other people in their support were gathering in Delhi to protest, writing their anger on the surface of the roads with chalk.
“Your democracy lies, our state was and is occupied.“
Governments of states were inviting Kashmiri students for lunch on the occasion of Eid; So that Kashmiri students do not feel aloof, But Kashmiri students were boycotting it.
But what was the actual story of this abrogation? Let’s recall this story of repression from its origin and for this, we have to go to the flashback of the problem.
FLASHBACK OF THE STORY
The story started when forces of Maharaja Ranjit Singh, a renowned Sikh ruler, ran over the valley in 1819. In 1822 Maharaja Ranjit Singh appointed Gulab Singh the ‘Raja of Jammu.’ Gulab Singh started to conquer lands near to his empire, conquered the Ladakh in 1830 and also won the Baltistan in 1840.
The Turning point came When Maharaja Ranjit Singh died in 1839 and Anglo-Sikh war started between the British Empire and Sikh Empire. Gulab Singh supported British Empire, Sikhs became defeated and also lose the ‘Heaven on the Earth’ by the ‘Treaty of Lahore’, which was signed on March 9, 1846.
Gulab Singh got the gift of his loyalty and faith and devotion towards the British Empire. British Empire granted him dominium over Jammu and Kashmir through a sale deed, which was also known as ‘Treaty of Amritsar’. As this, East India Company sold the land of J&K for 75 lakhs. The Hindu Dogra ruler became the ruler of the Muslim majority state.
Gulab Singh was succeeded by his son Ranbir Singh in 1856, who in their turn was succeeded by his son Pratap Singh in 1885. Pratap had no male heirs, so after the death of Pratap, British intervened, and made the king to Pratap’s nephew Hari Singh in 1925.
And, by following the tradition of his dynasty, Hari Singh paid the debt of the British Empire to make him king and supported the English Empire against the nationalistic and anti-feudal movement in his state. He also crushed the movements, which emerged due to the difficult conditions under which Muslims were living there.
Unnecessary restrictions in the lives of Muslims, frenzied restrictions on their eating, walking, and restrictions on their education and jobs, all these atrocities led to the Muslim movement in his state. Hari Singh’s troops burnt the whole villages of Muslims and did the massacre of Muslims, they were living in such strict surveillance that they were required to seek license even to slaughter a chicken for an ordinary meal.
These all conditions became the reason for ‘Quit Kashmir Movement’ against the monarch regime to revoke the ‘Treaty of Amritsar’, which gave the right to Dogra dynasty to rule Kashmir. Sheikh Muhammad Abdullah emerged as a leader of Kashmir, this was also the time when the National Conference formed. But this movement slowed down due to some political and social reasons.
In 1932, Hari Singh passed a state subject order conferring rights and privileges only to those state subjects. It was due to apprehensions of dogras from Jammu that the influx of people from Punjab would render them to lose their jobs and lands. This historical order also became the reason for article 35A later.
Then the story moved forward, ‘India that is Bharat’ born, with its birth, Radcliffe drew a deadly line between India and Pakistan. The question of 565 princely states was before the newly born India; Iron Man took the responsibility to incorporate the princely states into the Indian state. After so many efforts, most of the states became ready to be a part of ‘Indian Sovereign Democratic Republic’.
But Hari Singh did not decide as J&K was also a princely state. He was thinking that he will rule the state separately but when Afridi Lashkar ran towards Kashmir, Hari Singh ran towards the Nehru and Patel and signed the ‘Instrument of Accession’ on 26 October 1947.
In January 1948, that UN episode happened when India took the matter there; UN suggested a plebiscite, but both countries India and Pakistan did not agree on how to demilitarize the region. Meanwhile, Hari Singh appointed an interim government in March 1948, and sheikh Abdullah became the prime minister of Kashmir.
Now the story of ‘Article 370’ starts
In July 1948, Sheikh Abdullah joined the constituent assembly of India to discuss the provisions of Article 370. And with the promulgation of the Indian Constitution, J&K became the state of India under Article 1 and Article 370 gave the special status to J&K.
In 1951, the constituent assembly of J&K convened; all members belong to NC; in 1954, a presidential order declared Article 35A. Finally, J&K constitution was promulgated in 1957 and constituent assembly was dissolved, and Kashmir was formally incorporated into the Indian state.
THE PRESENT TIME
On 5 August 2019, we heard or watched breaking news which everyone was almost expecting from this government due to the situations in J&K from last few days. News channel told us that Indian ‘sovereign democratic’ government have taken two decisions-
First decision– Article 35A scrapped,
Second decision– Article 370 abrogated.
‘Democratic’ India was celebrating for such a highly undemocratic step. But the question is, was Article 370 really abrogated?
Let’s understand the legal tricks which were used to kill Article 370 though its body is still in its place in the Constitution.
After the Delhi Agreement 1952, the first president Rajendra Prasad issued Constitution (Application to Jammu and Kashmir) order 1954 by using the power conferred by clause (1) of Article 370, through which provisions added to the state deciding special rights and privileges on its people to protect the subject order.
Article 35A virtually included in Part III of Indian constitution, because it was not passed by the Indian Parliament.
Following were the special rights which the legislature of J&K has conferred only upon its permanent resident under Article 35A-
1)-Employment under state government;
2)-Acquisition of immovable property in J&K;
3)-Settlement in J&K;
4)-Right to scholarships;
Article 35A state that no such law legislated by the J&K assembly shall be void on the ground of it being inconsistent with part III of Indian constitution (Which provides the fundamental rights).
But now, by section 1(2) of The Constitution (Application to Jammu and Kashmir) order 2019, this order of 2019 superseded the order of 1954.
President Ramnath Kovind issued an order by using the power conferred in clause (1) (d) of Article 370, which states-
“Notwithstanding anything in this constitution,
Such of the other provisions of this constitution shall apply in relation to that state subject to such exceptions and modifications as the president may by specify:
Provided that no such order which relates to the matter specified in the Instrument of Accession of the state referred to in paragraph (i) of sub clause (b) shall be issued except in consultation of the state:
Provided further that no such order which relates to matter other than those referred to in the last preceding proviso shall be issue except with the concurrence of that government.
Let’s just simplify it,
According to the first part of this clause, President can issue any order to apply the other provisions of Indian constitution to J&K by any modification in Article 370; but the next part clarifies the limit of president power when it states that no such order can be issued without the concurrence and consultation of state government.
So, another question arises, where was the Government of J&K? Who gave its concurrence to issue this order to the president?
From December 2018, president rule under article 356 was promulgated in Kashmir after the divorce between BJP and PDP; No elections were held from that time; so there was no elected government.
According to Article 155 of the Indian constitution, Governor will be appointed by the president and according to Article 53, the president will use his executive power through his subordinate officers (ministers). So it seems Delhi took his own consent to impose such an arbitrary order which is also a violation of natural law.
There is also a need to look at another important clause (3) of Article 370, which states-
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 that as he may specify:
Provided that the recommendation of the constituent assembly of the state referred to in clause (2) shall be necessary before the president issues such a notification.
Thus, to repeal or modify Article 370, President needed the recommendations of the constituent assembly which was dissolved in 1956. Knowing this, the presidential order did not per se make any change directly to Article 370. Instead, it has amended Article 367 of the constitution.
By presidential order a new clause (4) was added to Article 367:
1)-As per this new clause, any reference in the constitution to the Government of Jammu and Kashmir shall be construed as a reference to the Governor of the state.
2)-likewise, any reference to the Sadar-i-Riyasat (chief of province), head of state of Jammu and Kashmir shall be construed as reference to the Governor of J&K.
3)-The constitution assembly of Jammu and Kashmir in Article 370(3) has been replaced by legislative assembly.
This enabled the president to repeal Article 370 with the concurrence of the legislative assembly of Jammu and Kashmir in future (however there is no need for it now).
What is the matter of this constituent assembly of J&K?
To repeal Article 370, President needed to accord the concurrence of the legislative assembly. There are two things related to the Constituent Assembly which make the nature of Article 370 permanent. These are the following-
Firstly, the language of the constituent assembly of J&K choose on its end was deliberate.
On January 24, 1950, the constituent assembly of India was meeting for the last time and had merely adjourned itself sine-die i.e. with no set date for its next meeting.
By contrast, the J&K constituent assembly resolution in its last meeting was-
“Today this historic session ends and with this, the Constitution Assembly is dissolved according to the resolution passed on 17th Nov 1956.”
Thus, the members of J&K constituent assembly very cleverly made this article permanent by dissolving the constituent assembly and also made provision that article 370 can be repealed by the recommendations of constituent assembly.
Secondly, Indian constitution gives the power to parliament to amend the provisions of the constitution, thus Parliament works as the constituent assembly of India.
As this, If J&K constitution gives the power to amend the J&K constitution under Article 147 to its legislative assembly, then J&K legislative assembly should be assumed as the constituent assembly of J&K.
But it is not such simple.
Article 147 of J&K constitution under clause (c) states that-
“No bill or amendments seeking to make any change in-
The provisions of the constitution of India as applicable in relation to the state;
shall be introduced in either house of legislative.”
Thus, it clearly denies to presenting the bill of application of other provisions of the Indian Constitution to J&K in its legislative assembly.
THE PICTURE IS NOT OVER YET
It is a very healthy tradition in India that any law passed by the government cannot go further without the scrutiny of the judiciary because India’s aware citizens compel the court to review the laws by filing writ petitions.
In the case of modification or abrogation of Article 370, many petitions were filed by lawyers, law students, journalists, and statesmen and also by bureaucrats.
But on which issues are these people filing the petitions? Let’s see-
These were some questions arising from that decision-
Firstly, Government cannot be replaced and equated by the governor, who is appointed by the president and who has no power of ‘will of people’;
Apart from this, presidential rule is temporary and exceptional situations until elected government does not start to work; Government cannot take any decision which is changing or destroying the fundamental and permanent structure of the state without the consent of elected government otherwise, this will destroy the principle of representative government, and also the spirit of ‘WE THE PEOPLE’ of Indian constitution.
Secondly, President had not the single power to change Article 370 according to constitution of India, so they amended Article 367 to replace the constituent assembly with legislative assembly. Is this not a colourable exercise and misuse of power?
Because it is a maxim, “What cannot be done directly cannot be done indirectly.”
Thirdly, Can an article be amended by way of a presidential order under Article 370 (1) (d) and a whole new clause be inserted merely because the clause is limited in its application to the state of J&K?
Fourthly, what is the constitutional relevance of Instrument of Accession, whether Article 370 was part of the basic structure of the Indian Constitution or not?
Fifthly, What will happen to the federal structure of India if the central government will use this way of getting the ‘concurrence of governor’ instead of elected government by imposing the president rule first and then imposing the curfew later and also detaining the politicians, to degrade the states in union territory; So if Nagaland, Mizoram, Manipur, and other states have problems, Will central government change them into union territory by imposing the president rule there?
Kashmiris are not suffering only from the last century, their wounds are old from almost two centuries, from the Sikh rule to the present time, Kashmiris are suffering continuously. Everyone knows that at the time of Article 370 abrogation, Kashmir became a cage, we had no idea of what was going on there, and every news coming from there was just a scripted story.
It is very strange that Indians except Kashmiris were celebrating this decision. Those people who were supporting this dictatorial step of the government should know that tomorrow when these steps will become part of the functioning of the government then this autocracy will enter in the life of people, and they will not be able to do anything because to protest and time to stop these autocracies would have gone.
Some people have argued that now Kashmir became part of ‘AKHAND BHARAT’. But the question is, was not Kashmir a part of India? Who was ruling there? Were not those Indian people? If Kashmir was not a part of India, then were the Chinese who showed the map of India without Kashmir, were they right?
If you had a problem with the special status of Kashmir; then, will you also raise your voice against those special statuses of other states which are mentioned under Articles 371 to 371(j) of Indian constitution?
Actually, democratic governments impose such arbitrary decisions in two situations-
First, if they have no fear of anger of people and have an unquestionable majority.
Second, if they need no support from them where they have imposed any autocratic or arbitrary rule.
In the case of Kashmir, both factors worked, BJP government have a vast majority in Loksabha and they needed no support from Kashmiris or Kashmiri Muslims will not give votes to such anti-muslim people.
It was spreaded by these people that Kashmiri pundits were very happy with this decision but who was showing this? That media that was under control of the government?
Real media that could show real conditions was under strict surveillance; journalists could not move freely there, Kashmiri journalists were in trouble, and they even could not get made their curfew passes because there was no curfew at all, Section 144 of IPC was applicable there but the consequences were like a curfew; security guard could snatch and break their cameras but journalists could not do anything.
Anuradha Bhasin, executive editor of ‘The Kashmir Times’ moved Supreme Court against these shutdowns on telecommunication and restriction on mobility. Communication stopped after that decision, Kashmiri people’s communication was cut down from the external world, they did not know what was going on outside Kashmir.
Independent people of India had no problem with the restrictions on Kashmiris, Prime minister was addressing the nation about those people who have no way to listen.
On the occasion of Eid, they had only two minutes to talk with their loved ones on telephone booth in a long queue. They were not able to purchase medicine and even go to hospitals for check-ups. Forget about the celebration of Eid for Kashmiris.
In a democracy, governments take decisions with the consent of people and if there is also any provision to take the consent of people in statute then it is the moral and legal duty of governments to do the same. But in this case, governments ignored all morals, and ethics.
No Kashmiri was happy with this decision, these were not only Muslims but also include Hindus; Government brought before us their MP from Ladakh to give a speech, how strange! Will not he give speech in the favour of his high command? He was telling that Ladakh had no recognition before but what was the fault of Kashmiris in this matter if Indians did not know about Ladakh, many Indians also don’t know about the states of northeast, then who is at fault in this situation?
Personal liberty is a precious right under Indian constitution, but political leaders of Kashmir were detained in ‘Hari Niwas’; what they found by supporting the Indian election system; the promise they made that they would get justice from the Indian constitution?
was this not a slap on the faith of promises? Was this not cheating from them?
What would have Kashmiris thought that Indian state would never consider them as equal as other Indian citizens?
Government was also giving arguments about the equality of women in property and at the same time their people were talking about Kashmiri women and girls in a very abusive manner; these were showing their mental level and their views about the Kashmiri women to whom they talking as they won them with the victory of land.
They were also giving an argument about the employment of Kashmiri youth and the development of Kashmir but what they did about the employment of the rest Indians, this is also strange that those people were also giving the argument of employment who were wandering in search of employment. Lakhs of Indian students who graduate every year have no idea what will they do in their life.
People of Kashmir were in a cage, and if anyone was raising voice for them in India they were declared as ‘gaddar’ and ‘deshdrohi’. Forget about the right to dissent, right of speech and expression, and right of personal liberty, just believe in pseudo-nationalism and that’s all.
I will end with a question for you,
Tell me if anyone comes in your house with force and takes possession of your property and no one supports you but celebrates your trouble what will your reaction be? Think about it.
The article is authored by A. H. Gangohi who is a constitutional law lawyer.