Was the Centre Right in Scrapping Article 370 in J&K?
A Constitutional law scholar discusses the legalities of the Centre’s action in Jammu and Kashmir
Malavika Prasad addressing students at the National School of Journalism about the legalities around the abrogation of Article 370
The abrogation of Article 370 in Jammu and Kashmir (J&K) is likely to have larger repercussions in the country as a whole, Malavika Prasad, advocate, Constitutional law scholar and columnist said on Saturday, August 10.
She was speaking to students at the National School of Journalism (NSoJ) about the constitutional issues and the legality of the actions taken by the Centre in J&K and Ladakh.
On August 5, 2019, the Indian government passed one of the most controversial bills in the democratic/parliamentary history of our country, scrapping Article 370. According to Ms Prasad, the law states that the Article 370 can be abrogated or amended only upon the recommendation of the state’s Constituent Assembly, which currently stands dissolved.
President Ramanath Kovind, used his powers under clause 1 of Article 370 and did away with Article 35A (which defines permanent residence in the state and provides special rights and privileges therein). Prior to this, by midnight August 4, political leaders from various parties were put under house arrest. There was (and continues to be) a communication shutdown in the valley and curfew officially imposed.
The special status of Kashmir
Why was J&K given special status? According to Ms Prasad, this is as per the historical social contract India had with the state of J&K. “Article 370 is considered to have given special status. There is a larger angle to be understood in the federal context before jumping into the special status of Kashmir,” she explained.
For instance, she said India is a union of states unlike the USA, which has many sovereign units coming together. “Whereas in our country, several territorially contiguous but ethnically, geo-politically, and linguistically dispelled units come together. Political theorists call this a ‘holding-together federation’ as opposed to the American model that comprises a ‘coming-together federation’.” In the Constitution, every single Indian state actually enjoys special status. This is set forth in the Articles from 370 to 371 J, she said. “Even Karnataka has special status in one of the later 371 articles. It is just a matter of understanding how differently each state enjoys this special status,” she observed.
Historical background
Ms Prasad explained that the princely state of J&K acceded to the Indian Union, through an instrument of accessions that was unlike the other states. This was partly because of its geographic position and the Muslim majority population in the Kashmir valley. Also, these were some of the conditions set down by the then ruler, Raja Hari Singh. This was in 1947.
Given that the Indian Constitution was drafted in 1950, this history pertaining to the accession of J&K assumed less significance. “Article 370 and the terms of the instrument of accession was then incorporated into the Constitution,” she explained.
Under 370, India can only apply provisions of the Indian Constitution to the state of J&K with the concurrence of the State Legislature not consultation. However, the President has extended all the provisions of the Constitution in an unmodified form as there is no working government or body of representatives in J&K -- it being under President’s rule. “They (the Centre) have taken only the Governor’s consent, but he is not an elected representative,” Ms Prasad pointed out.
