Article 370 - A Different Take
What is sovereignty? What is glorified as a nationalist movement by one state may be looked down at as an insurrectionist movement by another. It is, of course, natural that most people look at India’s abrogation of Jammu and Kashmir’s (J&K) special rights as the exclusive, just way forward for their relationship. This abrogation is, however, politics at its best. It is of utmost importance to look at J&K’s unique history and the conditions under which it acceded to India.
An article I wrote out of my research as an audition to The Teen Tribune.
Of the 565 princely states that acceded to India, three particular states posed a problem. They were, namely, Hyderabad, Junagadh and Kashmir. The cases of Junagadh and Kashmir are quite similar, except that their population compositions were a converse of one another. While the former was a hindu majority state with a muslim ruler, the latter was a muslim majority state with a hindu ruler.
The ruler of Junagadh, Muhammad Mahabat Khan III, had signed a treaty of accession with the Dominion of Pakistan in August 1947. However, the Hindu masses revolted against this and India took over temporarily to restore order. During this period, it held a plebiscite. The votes were resolutely in favour of the Dominion of India. Therefore, the State of Junagadh acceded to India. For Kashmir, on the other hand, a referendum was but a broken promise made to the people in a fabricated show of goodwill by India.
In August 1947, Maharaja Hari Singh, the ruler of Kashmir, was unwilling to join both India and Pakistan. He didn’t want to join India because he loathed Congress, which was then the face of India. But, by joining Pakistan, he would seal the fate of his Hindu dynasty. Kashmir thus adopted (an) independent statehood. However, within two months of its independence, its territories were infiltrated by several thousand armed men from the North West Frontier Province. These people were of the Pashtun tribe and it is suspected that they were backed by Pakistan. They quickly made their way to Srinagar, wreaking havoc and chaos in all parts of Kashmir that they blessed with their unholy presence.
The Maharaja, now in a very desperate spot, reached out to India for aid. India seized this opportunity to secure Kashmir’s accession to India. The Maharaja agreed with the proviso that it was conditional until settled by a reference to the people. This referendum, although promised so by India, was never held. It was thus decided that Jammu and Kashmir (J&K) would have its own constitution. Only Article 1 of the Indian constitution, which pronounced India as a Union of States, and Article 370, which was a set of provisions tailored to J&K’s needs, would apply to them. These ideals were further strengthened by the Delhi Agreement of 1952 between the governments of India and J&K.
Under the provisions of Article 370, no laws of the Union were applicable to J&K unless it fell under the ambit of Defence, Communication and External affairs. The Constituent Assembly had to ratify all other laws for it to be applicable to J&K. Further, it was only on the Assembly’s recommendation that Article 370 could be diluted. The Constituent Assembly, formed with the purpose of framing the Constitution of Jammu and Kashmir, dissolved in 1956.
In 2018, there was a political breakdown of the Government of J&K, formed by Bharatiya Janata Party(BJP) and People’s Democratic Party(PDP), when BJP pulled out of their coalition. BJP claimed that the regions of its influence in J&K were not given enough attention by the local political party PDP.
Consequently, the Governor’s rule was imposed as per the J&K Constitution, which extended up to six months. After this, the powers were shifted to President Ram Nath Kovind under Article 356 of the Indian Constitution. The President’s rule was thus imposed. Under the President’s rule, the Parliament acts as the Legislative Assembly of the respective state.
The President issued an Order construing the term ‘Constituent Assembly’ under Article 370 to mean ‘Legislative Assembly’ instead. Now that the Parliament had the powers of the Constituent Assembly, it was able to recommend the abrogation of Article 370 to the President, which the President followed through on. He also passed another Order reorganising J&K into the Union Territories of Jammu and Kashmir, and Ladakh.
It is important to note here that BJP was the Union Government at that time, which was able to establish full control in J&K by pulling out of its alliance with PDP at the regional level. The abrogation of Article 370 had been one of its electoral promises.
A strong argument in support of the abrogation is so; India finances Kashmir’s economy, betters the lives of its people and provides more than adequate protection to it at its borders. Is it truly fair to India for J&K to expect absolute autonomy in its functioning as well?
This argument, although sound, has one loophole. The Indians and the Kashmiris were well aware of all terms while signing the Treaty of Accession. Through this Treaty, the Constitution of J&K, The Delhi Agreement and Article 370, J&K and India evolved a structure together where the special rights of J&K would never be compromised. In fact, it took the Union Government a year and a half of diplomatic stay during the Governor’s and President’s rules and several Orders by the President to find a way around this structure. Can such promises be gone back on, solely because the interests of the nation have changed over time?
Further the Kashmiris, unhappy with this abrogation, challenged it in the Supreme Court. When the Court upheld the abrogation, several vowed that their strive for freedom would go on. The other union territory, Ladakh, was promised special protections by the BJP government, which has not yet been granted.
While the former argument believes that a country should have greater powers to rule over its own territories, its counter argues that a state’s historical ties with its country dictates the extent of its autonomy.
This multifaceted conflict therefore hinges on one, sole question; what is sovereignty?