Article 370's hollow promise

Article 370 of the constitution of India has failed to safeguard the autonomy of Jammu and Kashmir within India. But this betrayal did not occur only on August 5, 2019. Article 370’s road to irrelevance started before its promulgation.

In 1949, when the Indian constitution was being debated, N Gopalaswami Ayyangar presented a draft of Article 370 before the Constituent Assembly of India despite the opposition of members from Jammu and Kashmir. Ayyangar’s draft, defined “the Government of the State” as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers “for the time being in office” under the Maharaja’s proclamation.

Eventually adopted with this definition, Article 370 allowed India to choose the council of ministers through an appropriate promulgation by the Maharaja; and India precisely followed this approach by ousting Sheikh Abdullah from his office and throwing him behind bars in 1953.

Successive Indian governments have abused Article 370 to chip away at the autonomy of the people of Jammu and Kashmir. In 'Article 370: A Constitutional History of Jammu and Kashmir' (2011), A G Noorani documented that, through a series of presidential orders, “ninety-four of the ninety-seven entries in the Union List were extended to Jammu and Kashmir as were 260 of the 395 articles of the constitution”.

Problems arose early in the life of Article 370 because of the contradictory aspirations espoused by this provision. For Sheikh Abdullah and his party, Article 370 was a constitutional guarantee that Jammu and Kashmir would enjoy greater autonomy and a special status in India. But, for Nehru and his colleagues, Article 370 was a temporary and transitory measure, a stop on the way to the eventual and complete integration of Jammu and Kashmir with India. Nehru’s vision won decisively in 1953.

Over the last seven decades, state and central governments have colluded to strip away the protections available under Article 370. The constitution of the State of Jammu and Kashmir, promulgated in 1956, envisioned the office of Sadar-e-Riyasat as the head of the state. Sadar-e-Riyasat was to be elected by the legislative assembly of Jammu and Kashmir and appointed by the president of India. But, through an amendment in the state constitution in 1965, the governor, appointed directly by the president of India, replaced the office of Sadar-e-Riyasat.

In 1964, Article 356 of the Indian constitution pertaining to president’s rule was applied to the State of Jammu and Kashmir through a presidential order. Article 92 of the state constitution already provided for governor’s rule. The governor’s powers were further solidified through another presidential order in 1975, which barred the state Legislature from amending the powers and functions of the governor.

The constitutional maneuvers created a unique space under Article 370. During the president’s rule, the president, with his own concurrence (having assumed the executive powers of the state Government), could expand the legislative powers of the Indian parliament or apply the provisions of the constitution of India over Jammu and Kashmir. The will of the people of Jammu and Kashmir was sidelined.

The Supreme Court of India, in Sampat Prakash v State of J&K (1968), further emboldened the status of the central government by holding that Article 370 “has never ceased to be operative and there can be no challenge on this ground to the validity of the orders passed by the president in exercise of the powers conferred by this article.”

Constitutional moves to increase India’s control over Jammu and Kashmir were accompanied by sham elections. Braj Kumar Nehru, the governor of Jammu and Kashmir from 1981 to 1984, admitted that “From 1953 to 1975, chief ministers of that state had been nominees of Delhi. Their appointment to that post was legitimized by the holding of farcical and totally rigged elections in which the Congress Party led by Delhi’s nominee was elected by huge majorities.” While the governor was directly appointed by Delhi, the so-called elected representatives were selected by rigging the ballot. And the people lost their say.

The BJP government’s latest salvo on Jammu and Kashmir, in the midst of harsh curfews, lockdowns, and information blackout, was designed to break the will of the people of Jammu and Kashmir. Article 370 had already lost much of its significance. Still, the 1954 presidential order, mutilated through 47 amendments, became the “mother document” defining the constitutional relationship between India and Jammu and Kashmir.

Repeal of the 1954 presidential order, and the decision to carve out a new union territory of Ladakh, demonstrated the BJP’s majoritarian hold over constitutional arrangements in India. It was a deliberate and un-nuanced show of power. Repeal of Article 35-A, which was part of the 1954 presidential order will allow non-residents to settle and hold properties in Jammu and Kashmir. With the last of the constitutional protections snatched, India has declared that the Kashmiris will be relegated to a subjugated status within their own state.

Surprisingly, Narendra Modi’s vision of Jammu and Kashmir finds unlikely allies in the Congress. In a speech before the Lok Sabha in 1963, Jawaharlal Nehru foretold the eventual demise of Jammu and Kashmir’s autonomy: “Article 370… is a part of certain transitional provisional arrangements. It is not a permanent part of the constitution. It is a part so long as it remains so. As a matter of fact… it has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close.”

Later, in 1964, Gulzari Lal Nanda, who was the acting prime minister of India twice in 1960s, declared that “only the shell” of Article 370 was there: “whether you keep it or not, it has been completed emptied of its contents. Nothing has been left in it.”

Gulzari Lal Nanda had no qualms in stating the Congress’s lackadaisical attitude towards Article 370: ”We can regulate it, we can do it in a day, in ten days, ten months. That is entirely for us to consider.” Indian Home Minister Amit Shah echoed these sentiments before Lok Sabha on 6 August 2019. Through the recent presidential order, Narendra Modi’s government has done away with “the policy of steady, progressive erosion” of Article 370 (to quote Gulzari Lal Nanda) and replaced the liberal scalpel of Nehru with the butcher’s knife of the BJP and Hindutva.

The writer is a lawyer based in Lahore.