The repeal of Article 370 is not enough
Dipankar Sengupta | 15 Aug, 2019
(Illustration: Saurabh Singh)
WHEN HOME MINISTER Amit Shah tabled the Constitution (Application to Jammu and Kashmir) Order 2019 which for all purposes made Article 370 irrelevant—followed by two others that would defang the Article and do away with the state—for many, it marked the end of an era. For many on the Right, Article 370 was an obstacle to the integration of Jammu & Kashmir with India that had long required abolition. Some had even called for the partition of the state. But few had ever expected all of this to happen in their lifetime.
Although a Temporary Provision, Article 370 proved to be surprisingly long-lived. Politics and politicians expected it to be permanent. A bench of the Supreme Court had opined that the Article was permanent. But the Narendra Modi-Amit Shah duo, if anything, is unpredictable. It was amidst reports that terrorists were planning major strikes that tourists were asked to leave the state and the Amarnath Yatra was curtailed. Simultaneously, additional troops were moved into the Valley. On August 5th, the Government finally showed its hand; it went far beyond Article 35A, it went the whole way. By doing away with both Article 370 and Jammu & Kashmir as a state, the Modi-Shah duo proceeded to demonstrate that a week is a long time in the constitutional history of a country.
Few states have been as corrupt and mismanaged as Jammu & Kashmir. Consider the facts. State government expenditure in this current year was 57 per cent of the total state GDP, demonstrating the overwhelming dependence on government and a weak private sector. (For neighbouring Himachal Pradesh, also a hill state, it is around 28 per cent.) Of the total receipts of the state government, about 40 per cent comes from the Centre (over 50 per cent if only revenue receipts are considered) which is totally discretionary, that is, apart from its share of taxes collected by the Centre it is constitutionally mandated to receive. A massively bloated government workforce (approximately 5.5 lakh employees, of whom 70 per cent are from the Valley) ensures that over a quarter of its total receipts are consumed by salaries and pensions. Its per capita net state domestic product at Rs 94,000 is almost half of that of Himachal’s Rs 176,000, its road density less than a fifth of Himachal’s and unlike Himachal, its power sector is poorly managed. Yet, when it comes to average household assets, they are among the highest in the country. The total number of private and commercial vehicles registered matches that of Himachal although going by respective state incomes, it should be much less. The price of land, given a restricted demand as a result of its land laws, rivals that of richer states. Although on paper the state devotes much more than Himachal to capital spending, the latter’s infrastructure is far better. All of this points to the fact that Central funds meant for the state’s development suffer from immense leakages.
What did Article 370 have to do with all this? It is ironic that given the heat this constitutional provision has generated over the years, so few have actually bothered to read it in its entirety. This provision, contrary to popular opinion, has nothing to do with ownership of land or government jobs. Article 370 limits the application of the Constitution and the power of Parliament to make laws outside those areas specified in the pro forma document Instrument of Accession signed by Maharaja Hari Singh (and all other native princes). For other constitutional provisions to be extended to the state or laws passed by Parliament, the concurrence of the government, meaning the governor (previously the Maharaja and later the Sadr -e-Riyasat) acting on behalf of the council of ministers of Jammu & Kashmir, had to be obtained. It was in the exercise of Article 370 that the first Constitution (Application to Jammu and Kashmir) Order was made on January 26th, 1950, where the subjects in the Union and Concurrent Lists that corresponded to subjects mentioned in the Instrument of Accession (where Parliament had the right to make laws) were notified as well as a detailed list that set out which part of the Constitution would apply to Jammu & Kashmir and the modification or exception with which it would apply, if any.
Article 370 proved to be surprisingly long-lived. Politics and politicians expected it to be permanent. A bench of the Supreme Court had opined that it was permanent. But the Narendra Modi-Amit Shah duo, if anything, is unpredictable
This would be superseded by a more comprehensive order in 1954 which extended more provisions of the Constitution, importantly the citizenship laws, but also inserted the now infamous Article 35A in the Constitution. (Insertions in other Articles of the Constitution with respect to Jammu & Kashmir, for example in Article 368, are without exception contained in the respective Constitution Orders but 35A was inserted in the Constitution itself.) Article 35A prevented the courts from striking down any law made by the state when it came to defining a permanent resident of the state, and laws regarding preferential treatment for these permanent residents with respect to acquisition of immovable property, state government employment, settlement in the state and the right to scholarships and other forms of aid that the state provided. The provisions of Article 35A would in themselves not be taken amiss if one were from some the northeastern states, Himachal or Uttarakhand. Indeed, with similar restrictions on ‘outsiders’ acquiring immovable property but without Article 370-like provisions, Himachal has done better on almost all fronts than Jammu & Kashmir and with considerably less Central Government largesse. It is pertinent to ask how and why.
IT WAS ONLY 1991 onwards, once the PV Narasimha Rao Government discarded the licence-permit raj economy and embraced economic reforms that Indian states became somewhat autonomous with respect to boosting economic growth and development. Jammu & Kashmir lost much of that decade fighting militancy. When the state started to recover towards the late 1990s, it started to scout for investment and the Central Government extended a package that was meant for the northeastern states to Jammu & Kashmir as well. This package that depended largely on excise exemptions attracted investment to the state but investment was limited given the state’s inadequate infrastructure, poor road coverage and non-availability of power. Himachal did far better. As the state allowed for a 99-year lease on land, land availability was not the problem that it was, and is, made out to be. What hampered industrial growth and later the growth of tourism was the business climate that prevailed in Jammu & Kashmir. According to the Department of Industrial Policy and Promotion, the state ranked 22 in 2017 among Indian states and Union Territories, up from 29 the previous year. Moreover, since industrial production, as perceived, would largely occur in the Jammu division and new and unexploited tourism routes too would largely be located in Jammu and Ladakh, the Kashmir-centric polity, it seemed, was disinterested. This disinterest was strengthened by the fact that low growth, which meant low job creation, could be tackled by creating unproductive government employment (with residents of the Valley being the prime beneficiaries) where the tab would be footed by the Centre. As with the Northeast, the Centre had started to think that adequate money could calm waters. As in the Northeast, it turned out to be unsuccessful in the long run.
State government expenditure in this current year was 57 per cent of the total state GDP, demonstrating the overwhelming dependence on government and a weak private sector
When it came to rural development, a measure taken by the Narasimha Rao Government would have a massive impact. This was the 73rd Amendment. The state’s polity used Article 370 to ensure that this Amendment would not be extended to Jammu & Kashmir. Indeed, no provision of the Constitution of India which empowered communities, either rural or urban, was extended to the state through the exercise of Article 370. The 74th Amendment was not extended to the state. Nor was the Forest Rights Act of 2007, which sought to empower forest-dwelling communities. The Electricity Act of 2003, which sought to discipline the working of the power sector, too, was not extended. Only those provisions which ensured more revenue to the state were extended. A good example is the extension of the GST Act to Jammu & Kashmir. In the absence of community empowerment, rural development remained a process that was governed by politicians and bureaucrats, with massive leakages. Not surprisingly, the state’s village economy, in spite of tremendous potential, remains a low-yield economy that creates little by way of farm and non-farm employment.
While not many states had empowered Panchayati Raj Institutions prior to the 73rd Amendment, the enactment of this law left them with no choice. Subsequently, they had to empower urban communities after the enactment of the 74th Amendment as well as forest communities after the enactment of the Forest Act of 2007. Article 370 ensured that these laws, which empowered communities, often cutting out middlemen, were not automatically extended to Jammu & Kashmir; indeed, the polity argued in the case of the 73rd Amendment that it undermined the state’s autonomy.
With similar restrictions on ‘outsiders’ acquiring immovable property but without Article 370-like provisions, Himachal has done better on almost all fronts than J&K
Article 370, from being the tunnel for extending the Constitution of India to the state as described by former Home Minister Gulzarilal Nanda, was transformed into a valve through which only those provisions that increased the resources of the state government were extended and not those that led to the empowerment of its citizens. Thus, while the panchayat polls in 2011 experienced a massive turnout in both Jammu and the Valley, the state government chose to emasculate these panchayats by starving them of funds which would be very difficult under the 73rd Amendment. Without enabling legislation, as demanded by the Finance Commission, the panchayats lost over a thousand crore rupees by way of funds. This irresponsible action prevented the deepening of democracy and enabling of rural development. While many other states may have behaved similarly given the reluctance of MLAs to share power, what made it possible for Jammu & Kashmir to behave thus was Article 370. Article 370 led to a strange paradox—it made Jammu & Kashmir autonomous but its people ‘unfree’.
But it is the manner in which Article 370, along with Article 35A, has impacted the women of the state, the West Pakistani refugees and the Valmiki community that has framed national opinion about it. The issue is primarily with women permanent residents who marry non-permanent residents. The notifications of the Maharaja’s durbar have been subject to egregious distortion to strip such women and their heirs of their status as permanent residents. Males who marry non-permanent residents (including foreign nationals) suffer no such disability. Matters came to a head when Dr Susheela Sawhney challenged the appointment of Dr Ravinder Madaan to a government post (for which she was a claimant) on grounds that Dr Madaan was married to a ‘non -State Subject’. The state High Court’s three-judge bench ruled (two-to-one) dismissing Dr Sawhney’s writ in a far-reaching judgment that overruled previous judgments. In fact, previous judgments that had upheld such treatment had relied on an English law enacted in 1914. As the judgment pointed out, in 1962 the London High Court criticised this very law as the “most barbarous relic of a wife’s servitude”. It also ruled that Article 35A could not be used to justify inequality between the permanent residents of Jammu & Kashmir. On appeal to the Supreme Court, the state government realised that the Jammu & Kashmir High Court’s decision would not be reversed.
In the absence of community empowerment, rural development remained a process that was governed by politicians and bureaucrats, with massive leakages
Astonishingly, the Congress-PDP Government chose to introduce a Bill, the Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004, which proposed to disqualify any woman permanent resident of the state who married an ‘outsider’, that is, take away such a woman’s status of permanent resident. The government intended to use its power to redefine permanent resident under Article 35A. The Bill received support from the opposition National Conference and, surprisingly, also the CPI(M) MLAs and sailed though the Assembly but was blocked in the Legislative Council when it became clear that the government would fall if the Bill progressed. This indicated the level to which politics could regress when Article 370 and, in this case, Article 35A in particular served as a shield for such actions undertaken by the state government. Subsequently however, no notification as of date has been issued that specifically details how the rights of women who marry ‘outsiders’ and their heirs are affected.
West Pakistani refugees refer to those persons who migrated from the erstwhile West Pakistan during Partition and entered the state and then remained there. West Pakistani refugees, and indeed refugees from erstwhile East Pakistan, who migrated to various Indian states were absorbed in those states given India’s provision of single citizenship and definition of citizenship. But this has not been the case for those West Pakistani refugees who crossed over to Jammu & Kashmir, mainly to Jammu, in 1947. The Maharaja’s laws provided for a process for becoming a state subject. The state constitution adopted in 1956, which did away with the old laws, defined permanent resident of the state as a person who was a state subject on May 14th, 1954 (when the 1954 Constitution Order that inserted Article 35A in the Constitution of India was notified), or who had been a resident of the state for 10 years, and had ‘lawfully acquired immovable property in the state’. This retrospective definition excluded the West Pakistani refugees who would have otherwise acquired this status the following year. Article 35A ensured that the Supreme Court, in a 1987 judgment, albeit sympathetic to their cause, would be unable to give them relief. The Gorkhas of the state also found themselves in a similar position. Thus, they can neither acquire immovable property nor apply for jobs in the state government or seats in professional courses in government institutions.
This is a golden opportunity for the Centre to fundamentally alter things in the new Union Territory. For one, its governance and subsequently the polity can be decentralised
The Valmiki community was invited by the government of Jammu & Kashmir in the 1950s after local sanitation workers had gone on a strike. The members of this community, who have been here for six decades, are now only eligible for the jobs of sanitation workers. Candidates who qualified for Central government positions in the paramilitary forces could not join these forces because they were not given even domicile certificates.
THE KASHMIR-CENTRIC polity made it very clear that no progress would be made in this regard (as Mufti Mohammad Sayeed, the former chief minister, told a delegation of West Pakistani refugees) till the “final resolution of the Kashmir dispute”. Clearly, Article 370 also served as a device which enabled the Kashmir-centric polity to induce such legislation or prevent closure to longstanding issues that kept the state, particularly Jammu, on the boil. Evidently, as a device to keep the Central Government on the edge, it was a provision without exception.
If indeed Article 370 had outlived its utility (if it ever had one), how was it to be removed? The Article itself provides the method for its repeal or amendment—through a notification by the President, provided a resolution to that effect is passed by the state’s Constituent Assembly. When this body wound up, it can be argued all its functions were taken up by the state legislature. Under Governor’s Rule, this role is assumed by the governor. Under President’s Rule, this function is performed by Parliament.
The Constitution (Application to Jammu and Kashmir) Order 2019 has used Article 370 in such a manner wherein it loses its ability to act as a shield against the Constitution of India. This Order supersedes ‘the Constitution (Application to Jammu and Kashmir) Order 1954 as amended from time to time and makes all the provisions of the Constitution, as amended from time to time, applicable in relation to the State of Jammu and Kashmir with such exceptions and modifications…’ Such an order has the concurrence of the state (that is, the governor). There is precedence for this. Two Constitution (Application to Jammu and Kashmir) Orders in 1993 and 1994, when the state was under President’s Rule, were issued in a similar manner. Once passed by Parliament, the proviso that prevents the Centre from altering its borders or changing its status (brought about by the now superseded 1954 Order) is void and Parliament can go about the second task of reorganising the state.
The volume of funds that flows from the Centre, which is both the cause and effect of J&K’s profligacy, needs to be relooked at and Central funds reallocated. Governance is more important than before
ALONG WITH THESE exercises, the Home Minister also tabled the resolution for the de facto repeal of Article 370. This circumlocutious route had a logic. It has been argued that a mere repeal of the Article may lead the courts to hold that the possibility of application of the Constitution to the state may no longer exist. That was an avoidable deadlock. Thus, the first Order states unambiguously that all provisions of the Constitution shall apply to the state making its reorganisation possible. The order also states that the expression ‘Constituent Assembly of the State’ be read as ‘Legislative Assembly of the State ’. The second step was to end Jammu and Kashmir’s existence as a state. And the last was to repeal Article 370 altogether. The Presidential Notification approved by Parliament (acting on behalf of the state legislature) now has Article 370 stating that all provisions of the Constitution as amended from time to time shall apply to the state regardless of the phrase ‘not applicable to Jammu and Kashmir’.
The separation of Ladakh, both Kargil and Leh, will be welcomed by both districts but more so in Leh. They will no longer be hostage to the Valley’s vexed politics. Isolating Jammu from Kashmir is much more difficult as the population in the hills of Jammu are mixed and do not provide for a clean break. However, this is a golden opportunity for the Centre to fundamentally alter things in the new Union Territory. For one, its governance and subsequently the polity can be decentralised using the 73rd and 74th Amendments. While panchayat elections have been held, elections to blocks and district bodies (after they are constituted) should be held and powers and finances transferred to them. If Kerala spends nearly half its capital expenditure through its local bodies, the figure for a state (larger and far more diverse) cannot be much lower. The Tribal communities, the Gujjars, Bakarwals, the Gaddis and Sippis need to be empowered with the help of the Forest Act of 2007. Article 370 prevented democratic decentralisation and community empowerment. With its veto mechanism rendered ineffective, this is no longer the case.
The de facto repeal of Article 370 is not enough. The volume of funds that flows from the Centre, which is both the cause and effect of Jammu and Kashmir’s profligacy, needs to be relooked at and Central funds reallocated. Governance is more important than before. The resident of the Valley has been told for decades that Article 370 and Article 35A are the cornerstone of his identity, pride and honour. Across the state, there is the apprehension of getting swamped by outsiders, something that is shared by both supporters of Article 370 as well as those who campaigned for its repeal. The time for which the state remains a Union Territory offers the Centre an unhindered opportunity to demonstrate that the full bounty of the Constitution of India extended to the state, coupled with good governance that is participatory, democratic decentralisation and popular empowerment at all levels are key to development, the ability to compete, self-reliance and, therefore, self-respect.