On August 5, Home Minister Amit Shah proposed in the Rajya Sabha that Article 370(1) and Article 35(A) of the Constitution be revoked. The Gazette notification released by the Union Ministry of Law and Justice, has been signed by the President of India Ram Nath Kovind.
But what is Article 370 and why is it such a contentious issue?
In plain words, Article 370 exempts Jammu and Kashmir from the Indian Constitution, excluding Article 1 (which recognises India as a Union of States) and Article 370 itself. What this means is that the state is allowed to draft its own Constitution, thereby limiting the Indian Parliament's legislative laws over it.
Before Article 370, the Instrument of Accession
The history of Article 370 can be traced back to British India's partition, when the country was divided into India and Pakistan. Jammu and Kashmir at the time was ruled by a Hindu king, Maharaja Hari Singh. There were about 600 princely states in the country who were given three choices – to join India, to join Pakistan, or to remain independent. An Instrument of Accession (IOA) was to be signed for a princely state to join whichever nation.
Maharaja Hari Singh had initially indicated a preference to remain independent. However, communal violence broke out in October-November of 1947 in the kingdom, a few months after India and Pakistan became independent countries. An estimated 20,000 to 1,00,000 Muslims were massacred, reportedly with the help of the king and the Rashtriya Swayamsevak Sangh. As the violence spread, thousands of non-Muslims, mainly Hindus and Sikhs, were massacred by Pakistani tribes and soldiers in Mirpur (what is today Pakistan administered Kashmir) and Rajouri (in Jammu). Finally, Hari Singh wrote to the Indian government for military assistance and signed an IOA to join India on October 26, 1947.
Commenting on the events at a prayer meeting in New Delhi in December, MK Gandhi had squarely blamed Hari Singh for the violence.
How Article 370 came in
The IOA allowed Indian legislation in Jammu and Kashmir over three matters – defence, communication, and foreign affairs. This was the case with all princely states which had signed IOAs. However, the princely states were invited to send representatives for the Constituent Assembly which would frame a Constitution for the whole country. The states also had the option of setting up their own constituent assemblies. While most princely states eventually agreed to follow the Indian Constitution as their own, Jammu and Kashmir asked that only those provisions of the Indian Constitution that were included in the original IOA be applicable to the state.
Due to the geographical location of Jammu and Kashmir which lies between India and Pakistan, Lord Mountbatten (the then Governor General of India) had accepted Hari Singh's IOA with a remark that a plebiscite must be held after the violence was quelled for the people to determine which country they belong to. While India asserted that the IOA was final, Pakistan said it was a fraudulent accession. The plebiscite never took place – India took the dispute to the UN on January 1, 1948, and was subsequently ready for a plebiscite, but Pakistan continued with the fighting in the region. The two countries agreed to a ceasefire in 1949, with 65% of the disputed territory coming under Indian control and the rest with Pakistan.
Finally, Article 370 was included in the Indian Constitution, stating that other articles of the Constitution which give powers to the Union government will be implemented in Jammu and Kashmir only with the consent of the state's Constituent Assembly. This was meant to be a temporary provision, applicable only till the state formed its own constitution. However, the state's Constituent Assembly dissolved itself on January 25, 1957, without coming to a conclusion on what it wanted done with Article 370.
Since then, Article 370 has been India's Constitutional relationship with Jammu and Kashmir. This means that the state's residents live under their own laws, including matters related to citizenship (Article 35A of the Indian Constitution permits Jammu and Kashmir's state legislature to define "permanent residents" and also provide special rights and privileges to them), property ownership, and fundamental rights.
Contrary to popular perceptions that it is Article 370 which prevents outsiders from purchasing land in Jammu and Kashmir, it is technically a treaty between the Dogras and the British in 1846 under the Treaty of Amritsar which doesn't permit this. However, it is true that this law has remained unchanged because of the existence of Article 370 which doesn't allow the Indian government to intervene. It must also be noted that such restrictions on buying property exist in other parts of the country as well – Arunachal Pradesh, Himachal Pradesh, Andaman and Nicobar Islands and Nagaland.
What happens if Article 370 goes?
Speaking to TNM, political scientist Swarna Rajagopalan said, "What Article 370 does is give maximum autonomy to a state within the Indian Constitution. Jammu and Kashmir has 370, but there are several spin-offs of this, if you look at the Constitution, that apply to a variety of states. All of them guarantee extra autonomy to the state. In the case of Jammu and Kashmir, the Article includes a separate state constitution. But the question is, if you revoke Article 370, what happens to the Instrument of Accession?"
If the terms of the IOA included maximum autonomy and a separate Constitution, then what happens to the legal document? There is no clarity about how the government will address this right now.
There is also concern among political experts about the urgency with which the Centre has gone about making its move, without allowing sufficient time for discussions among political parties and taking the views of the people of Kashmir into account. A political expert who did not wish to be named said, "If you do this without popular consent, then you're also further questioning the legitimacy of Kashmir's presence in India."
The abrogation of Article 370, if it happens, also raises questions on special arrangements that have been made for states like Mizoram. "All of those states which had conflicts in the '80s have been given special status provisions. What happens to all of that?" the expert asked.
The expert also pointed out that the Sarkaria Commission was set up in 1983 by the Central government to examine the relationship between the Centre and the states, because of a push from the states for greater autonomy.
"The joint demand was for all states to have greater autonomy and it was this that led to the setting up of the Sarkaria Commission. In some sense, it's not just Kashmir which has been pushing for greater autonomy, it is every large Indian state. And every large Indian state is set to gain from autonomy at several levels. These are all the things which will come up if Article 370 goes," the expert said.