Correcting past blunders

Abrogating J&K's special status may face legal challenge

By moving to revoke by Presidential fiat provisions of Article 370 granting people of Jammu & Kashmir (J&K) a special status, and introducing Bills to bifurcate the state into Union Territories, the Bharatiya Janata Party-led National Democratic Alliance has moved boldly and decisively to fulfil a prominent element of its election manifesto. However, several issues flow from Monday’s developments, the principal one being whether the manner in which the government has sought to alter J&K’s status will promote the kind of integration that its political project had envisaged. There can be no denying that in seeking to abrogate the 72-year-old statute that granted special autonomous status to J&K corrects some historical missteps. When the Maharaja of Kashmir signed the instrument of accession, it was on the same unconditional terms as those of the other princely states that merged with the Union of India. It is unclear why J&K’s citizens should have been permitted to live under a separate set of laws, which included a bar on citizens from other states acquiring property in J&K.

In a broad sense, then, the move follows a certain logic. The government’s argument is that Section 3 of Article 370 empowers the President to declare the special status granted to Jammu and Kashmir inoperative anytime. Article 370 (3) reads, “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.” Thus, a Presidential Order was issued using this provision to implement a key promise by the BJP in its election manifesto. Notwithstanding the argument, associated legal intricacies and constitutional questions guarantee that the matter will end up in the Supreme Court, which will have to decide whether taking the consent of the state Constituent Assembly can be taken to mean the Legislative Assembly. In some ways, this is a constitutional coup achieved by having no state assembly and no state government. That has created the space for the governor and Parliament to act on their behalf. What has been done would not have been possible if the assembly and the state government had been functioning. So the decision to delay assembly elections has proved to be a crucial preparatory step.

One of the big concerns is the route the government has taken to implement such momentous changes. A significant alteration in the status of the state could have been preceded by consultation with local leaders or the people of J&K, which Article 370, in fact, stipulated. Instead, the government saw fit to move more troops into the state, impose curfew and an internet blackout, and place major political leaders under house arrest over the weekend. The second question is what precisely this move achieves in political terms. Home Minister Amit Shah suggested in Parliament that Article 370 had hindered development in the state and dried up job-creating investment. This is flawed reasoning. The lack of development is the product of chronic unrest, which has had less to do with the special status of its citizenry than the fact that it remains disputed territory, with Pakistan building its national purpose around fanning the flames of the separatists and terrorists. What was required was confidence-building measures, but successive governments failed in that.