Article 370 — A Never-Ending Quandary

by Subirthana M S

On May 2019, BJP President Amit Shah reacting to former Chief Minister of Jammu and Kashmir (J&K) Omar Abdullah’s statement that J&K should have a separate Prime Minister, said that if the BJP comes to power again with Narendra Modi as the Prime Minister, Article 370 that gives special provisions to the state of J&K will be removed for sure.

In response to BJP’s 2019 manifesto, attempting to do away with Article 370, Omar Abdullah — the Vice-President of National Conference — on April 2019 had demanded a separate Prime Minister and President for J&K. He pointed out that until 1965 Kashmir had its own President (sadar-e-riyasat) and Prime Minister (wazir-e-azam). He said his party will work with anyone who promises to protect Article 370 and Article 35A and claimed to restore the internal autonomy that existed during the accession of Kashmir to India.

BJP as a party has also been very vocal about the abrogation of Article 370. This mention of being done away with the Article has been a part of its election manifestos for a number of years now. However, for the very first time, the Central Government has turned its focus on Article 35A and the need for annulling it. The argument put forward by the government is that Article 35A is discriminatory against the non-permanent residents of the state. The separate Constitution of J&K is also seen as unconstitutional on many grounds. Its existence is against the supremacy of the Indian constitution and conflicts the Indian motto “One Nation, One Constitution, One National Anthem and One National Flag”. The PIL filed against J&K in the Supreme Court of India also challenges “Articles 6, 7, 8 and 144 of the Constitution of J&K as arbitrary and contrary to the fundamental rights under the Indian Constitution.

The Central Government also favours the return of Kashmiri Pandits to the state. Why is the government so particular about the re-entry of Kashmiri Pandits into the region? Well, some argue that it is a deliberate attempt to change the demography of the state.

Addressing an election rally, National Conference President Farooq Abdullah said the Government of India has been saying this for a long time. “Go and do it. The moment you do, it will end J&K’s accession with the Union of India. Let them do it and we will become aazad (free),”

People’s Democratic Party (PDP) President and former Chief Minister Mehbooba Mufti said “Once you break that bridge Indian rule will become illegal in Kashmir. It will become an occupational force”.

Although, the Central Government claims to have restored normalcy and security in J&K in the past five years, there has been a significant increase in militancy, terror attacks and ceasefire violations. The overwhelming majority of the Valley’s residents think that the security forces abuse their powers and often accuse them of killing innocent people and violating the basic human rights under the ambit of Armed Forces (Special Powers) Act (AFSPA), a law that largely protects soldiers from prosecution.

Significance of Article 370 and 35A

Article 370 is the bedrock of the constitutional relationship of J&K with the rest of India. The state of J&K has its own historical significance which gave it a special status in the first place. Under Article 370, the Central Government can make laws only with the approval of the state government which practically gives the state government a veto power. Articles 352 and 360 pertaining to National and Financial Emergency, respectively, are not applicable to the state of J&K. Article 356 of the Indian Constitution, which gives the President of India the authority to impose his rule over a state cannot be enforced in the case of J&K, unless the governor issues a proclamation to that effect. Article 370 confers dual citizenship for the residents of J&K. Also, under this Article no outsider can buy property in the state. The Anti-Defection Law is also not applicable to the state. The abrogation of Article 370 will raise the question over Kashmir’s accession to India.

Another issue pertaining to the state is Article 35A, which confers permanent residence to the residents of J&K. It restricts people from elsewhere from working, settling or owning property in the state. The ruling party in the centre believes that the special status, rights and privileges enjoyed by the residents of the state will only give rise to alienation and separatist identity in J&K. It also points out that Article 35A is a clarificatory provision and it does not itself assure any special status.

Articles 370 and 35A are the only promise Kashmiris get from the Indian side for their protection. Despite having the special status, Kashmir still faces security issues. Not only this, Kashmir is tied to India only through these Articles and if they do not exist, there is no other way to prove its integration to India. This point has been stressed by Kashmiris very strongly time and again. In case the Articles are done away with, Kashmiris argue that they will choose independence over India or Pakistan.

However, what is more important here at the moment is instead of J&K being viewed as a security issue, it should rather be viewed as a political issue and needs to be resolved by negotiations with key stakeholders.

(Subirthana M S is a Research Intern at CPPR Centre for Strategic Studies. Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research)