“I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion…”
“We have fought the good fight about Kashmir on the field of battle… (and) …in many a chancellery of the world and in the United Nations, but, above all, we have fought this fight in the hearts and minds of men and women of that State of Jammu and Kashmir. Because, ultimately – I say this with all deference to this Parliament – the decision will be made in the hearts and minds of the men and women of Kashmir; neither in this Parliament, nor in the United Nations nor by anybody else,” Jawaharlal Nehru said in the Lok Sabha on June 26 and August 7, 1952.
– Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and Vol. 19 pp. 295-6, respectively.
Background
The state of Jammu and Kashmir is at the threshold of making history. As the reality and implication of the Presidential Order, the Constitution (Application to Jammu and Kashmir Order) 2019, passed on July 5, 2019 becomes evident, the hitherto federal arrangement of the erstwhile princely state is sought to be replaced by a bifurcation of state into two parts. The state of Jammu and Kashmir has been a part of India on terms which resembled more a confederation than a federation in strict political terms.
After the princely state of Jammu and Kashmir acceded to India through the Instrument of Accession on October 26, 1947, Maharaja Hari Singh agreed on an arrangement whereby the Dominion of India acquired jurisdiction over the state with respect to subjects of Defence, External Affairs and Communications. The state was included in Part B States (alongside former princely states like Hyderabad and Junagadh apart from Jammu and Kashmir) in the First Schedule of the Constitution of India, as promulgated in year 1950.
It is vital to remember that owing to the lapse of imperial paramountcy by virtue of Section 7(1)(b) of the Indian Independence Act, 1947, the Indian princely states became absolutely sovereign (supreme power over oneself or we can say were able to decide for themselves) and thus, had the option of either acceding to Pakistan or to India. By signing the Instrument of Accession, the state of Jammu and Kashmir became irrevocably a part of India.
India secured control of state by warding off Pakistani forces sent by Mohammad Ali Jinnah who had his own plans for Kashmir but Nehru and Patel foxed him by striking up a better equation with Sheikh Abdullah, a towering leader who advocated self-rule for Kashmir.
Due to peculiar geo-political reasons preceding the formation of state, the Indian government declared that despite the accession of the state of Jammu and Kashmir to India by the then ruler, the future Constitution of the state as well as its relationship with India were to be finally determined by an elected Constituent Assembly of the State. Eventually, the State Constituent Assembly met in October 1951 and ratified the state’s accession to India besides drafting a separate Constitution for the state successfully in 1957 and putting an end to the hereditary princely rule of the Maharaja.
It may be recalled that one of the conditions of acceptance of the accession by Government of India was that Maharaja would introduce popular government in the State. The Constitution (Application to Jammu and Kashmir) Order, 1954 cemented the relationship between the Union and the State on these lines. Article 35A was also inserted in 1954 by the then President of India, Dr Rajendra Prasad, apparently on the advice of the Prime Minister Jawaharlal Nehru.
This article essentially gave exclusive rights to state residents in the sphere of jobs and owning land. An important fallout of the confederate like arrangement worked out between the Indian government and the state was that the plenary power of the union parliament was restricted with respect to the state as it could not make any law without the consent of the Legislature of the State of Jammu and Kashmir where there is a question of:
1) Alteration in the name or territories of the State (Article 3, Constitution of India, 1950)
2) International treaty or agreement affecting the disposition of any part of the territory of the State (Article 253, Constitution of India, 1950)
Fetters were imposed on the executive powers of the Union to safeguard the autonomy of the state of Jammu and Kashmir. This scenario is no more valid under the new arrangement.
The New Federal Arrangement
The newly promulgated Presidential Order of 2019 astutely employs the legal technicalities to ensure that the step doesn’t fall on the wrong side of the law. The existing political scenario in Jammu and Kashmir is self explanatory to everyone. With an absent state government, and the state assembly lying dormant and President’s rule in place, a perfect pitch was available for the ruling party to give formal colours to its long stated goal of abrogating Article 370 which in its view was an obstacle in the development of the state.
Under normal circumstances,a two-thirds majority would be needed to pass a constitutional amendment. Moreover,it was difficult to bypass the dictate of Article 370 as its Proviso states explicitly that “no order which relates to matters other than those referred in Instrument of Accession shall be issued except with concurrence of that Government.“
The 2019 Presidential Notification ‘supersedes’ the 1954 Order and significantly declares that all the provisions of the Constitution of India, 1950 as amended from time to time shall be applicable to the state of Jammu and Kashmir. Effectively,this step takes away every bit of autonomy so far enjoyed by the northernmost state of India.
Importantly, the second part of the August 5 notification brings in a new clause in Article 367 (which deals with interpretation of Constitution) to say that in Proviso to clause 3 of Article 370, the expression “Constituent Assembly” shall mean “Legislative Assembly.” This has been thoughtfully done to remove the textual anomaly which accorded Article 370 a permanent status because under it, though the President had the power to end the special rights and privileges of Jammu and Kashmir, he could not do so without obtaining the consent of the Constituent Assembly of the state which had ceased to exist since 1956 when it was dissolved.
At the time of its dissolution, the Assembly stated nothing about the abrogation of Article 370. This historical facet in fact, gave a character of “permanent nature” to the provision of Article 370 even though it is ensconced under Part XXI (Temporary, Transitional and Special Provisions) of the Constitution of India, 1950.
New Challenges
In view of the fact that state is now going to be re-organised and with the spectre of militant extremism on the rise in the state, it remains to be seen how the government takes on the tough challenges of building favourable public opinion at the ground level and ensures peace. The manner of execution of the whole exercise of “change in the governance model” of Jammu and Kashmir in which posse of paramilitary forces were posted in the valley just before the promulgation of the Presidential Order raises humanitarian concerns. The massive military buildup in the state betrays any semblance of public confidence of people in the new constitutional arrangement.
A law is truly said to be successful when it is greeted with open arms. Rule of law posits that ‘just laws’ are clear, widely publicised, applied evenly and protect the fundamental freedoms of people including security of persons, property and human rights. It is doubtful and as time passes, one has to watch, how the situation at ground level develops.
The new law has been brought in by completely silencing political voices and securing a massive military mobilisation. Aggressive militarisation cannot be the solution in Jammu and Kashmir for as long as the government needs to take the civil society and relevant political voices along with it. The new ‘model of governance’ imposed from above would need to be implemented in an equally supportive, robust atmosphere of peace and stability.
Leaders like Nehru at the time of independence had visualised that ultimately the decision of a successful political order shall be made in the hearts and minds of the people of Jammu and Kashmir. Moreover,the step of ascribing Union Territory status to newly carved territories puts the effective control of the region in the hands of the Union government.
Also, it will be a challenge as to how the channels of communication between citizenry residing in the Jammu and Kashmir region and rest of India are regulated. That land is now apparently up for grabs in Jammu and Kashmir for everyone under the new federal arrangement is making rounds on social media. Many comments in circulation are in plain bad taste and should not proliferate. Media communication in the Kashmir region is proscribed but citizenry elsewhere is misusing social media. This scenario need to be checked to avoid elements of insecurity from seeping into the body politic of the nation. The next three to four months are crucial to check fissiparous tendencies.
Whether this new federal arrangement will really pass the test, posed by famed constitutional expert KC Wheare, is a question of time. Wheare had proposed, “The test which I apply for Federal Government is then simply this. Does a system of Government embody predominantly a division of power between general and regional authorities, each of which, in its own sphere, is coordinate with the other’s and independent of them? If so, that government is federal.”
It remains to be seen now, if the federal spirit permeates the governance in the State of Jammu and Kashmir or it continues to be under the long shadow of the central government.