PAGD White Paper On Jammu and Kashmir

A coalition of Kashmir based political parties including the National Conference, Peoples Democratic Party, CPI (M) and Awami National Conference on Saturday, February 26, 2022, released a nearly 14000-word whitepaper title Betrayal. It highlights the historic position that PAGD holds on Article 370 and allied issues and offers a response to what its leaders said propaganda blitz. Here is the text of the document:

PAGD leaders released a ‘white paper’ in Srinagar on February 26, 2022, during a press conference. KL Image: Bilal Bahadur

PREFACE

The dawn of independence brought with it important responsibilities for political leadership. One amongst the onerous responsibilities was to agree on a National Emblem – heraldic and unique insignia, that would capture values and ethos cherished for centuries, by now an independent nation. The exercise began soon after proverbial “tryst with destiny” and on 30th December 1947, the 280 BC built Ashoka Pillar at Sarnath, was selected as National Emblem. With the Constitution of India coming into force on 26th January 1950, the symbol was adopted as the National Emblem of the Republic of India.

The National Emblem has engraved on it the quote “Satyameva Jayate” – meaning the “Truth alone Triumphs”. The quote is the first line of a stanza from the last of the Vedas. It says “only truth prevails, not untruth” and the path of truth alone leads to “the supreme treasure of truth.” The quote is National Motto that proclaims India a nation committed to upholding the truth above everything else. Integral to it is a sacred resolve to respect and fulfil as a nation all the pledges and promises made.

This paper sets out in some detail, as to how, in flagrant disregard of the pledges made, the essence of the National Emblem, the letter and the spirit of the

Constitution and violation of its basic structure, the State of Jammu and Kashmir was on in August 2019 denuded of its special constitutional status. It highlights the manner in which the Constitution of India was brazenly trampled upon while dismembering and downgrading a historic State.

The paper also traces the background in which Jammu and Kashmir was granted autonomy except in the matters conceded to the Union and the constitutional mechanism devised to guarantee its autonomy or special status.

It makes an endeavour to contest, on the basis of legal-Political arguments and reliable and convincing data, the mistruths on which the August 2019 unconstitutional and unethical decisions are marketed. It is a reminder to the Indian polity, political thinkers and civil society that the decisions are a betrayal, a naked violation of the core constitutional values and above all the National Motive of “Satyameva jayate”; that to address the political aspirations of 13 million people of Jammu, Kashmir and Ladakh and for durable peace, the decisions need to be revoked without losing time. The lessons of history are very important, among them is that truth alone triumphs and arrogance bites the dust.

The Solemn Pledge

The State of Jammu and Kashmir was the only State amongst the princely States that negotiated terms of accession with the dominion of India. The parties agreed on a constitutional mechanism to govern relations between the State and Union of India in tune with conditions subject to which the Ruler acceded to the dominion of India and also having regard to the agenda of the political party that led the freedom struggle. The Constituent Assembly of India was busy framing constitution for the Country and it was found appropriate to have the agreed mechanism made part of the constitution. The Constituent Assembly after due deliberation and discussion with complete consensus incorporated Article 370 in the Constitution. The provision was to govern the relations between Jammu and Kashmir and the Union.

The constitutional provisions restricted the jurisdiction of Parliament to legislate as regards Jammu and Kashmir to three subjects namely External Affairs, Defence and Communications. The State Legislature was to have the power to legislate on all other matters. Any constitutional provision beyond these three subjects could be made applicable only with the concurrence of the Constituent Assembly of Jammu and Kashmir.

Mahatama Gandhi in Srinagar with Begum Akbar Jehan and her daughter Khalida Shah on August 1, 1947

Consequent to the Accession and Constitutional Framework of J&K with the Indian Union, the Constituent Assembly adopted a Separate Constitution for Jammu and Kashmir. The State Constituent Assembly being the custodians of the rights of the people gave a permanent shape to the Constitutional relationship between the State and the Union of India codified with the Constitution of Jammu and Kashmir formally adopted on 26th January 1957.

Apart from Article 370 which is a self-contained code, Article 1 was made applicable to Jammu and Kashmir. It was on 26th January 1950 the President of India issued The Constitution (Application to Jammu and Kashmir) Order. 1950 CO whereby the matters specified in the First Schedule to the Order and provisions of the Constitution mentioned in its Second Schedule were made applicable to Jammu and Kashmir. All these matters and the constitutional provisions fell within the ambit of three subjects on which the State acceded and were made applicable to the State.

The State Constituent Assembly was convened in April 1951 AD and commenced its work soon. At the same time, the two governments found it necessary to give a fresh look to the constitutional framework and deal with some uncovered areas of immediate concern. To illustrate, Maharaja continued as head of the State, Part II of the Constitution did not apply to the State and the State Subjects did not have citizenship status and the jurisdiction of the Supreme Court did not extend to the State. The negotiations between the two governments led to the Delhi Agreement of 1952.

N Gopalaswami Ayyangar, Minister for Railways and Transport, opened the 27-mile-long Mukerian-Pathaknot broad-gauge railway line on the Northern Railway on April 07, 1952, thus bringing the Kashmir Valley 44 miles nearer to India. Photo shows Ayyangar adressing the gathering at a ceremony before declaring the new line open. (Image: Photo Division)
N Gopalaswami Ayyangar, Minister for Railways and Transport, opened the 27-mile-long Mukerian-Pathaknot broad-gauge railway line on the Northern Railway on April 07, 1952, thus bringing the Kashmir Valley 44 miles nearer to India. Photo shows Ayyangar adressing the gathering at a ceremony before declaring the new line open. (Image: Photo Division)

The Delhi Agreement 1952 reaffirmed that while in case of all other states the residuary powers vested with the Centre, as regards Jammu and Kashmir the residuary powers would vest with the State. The State was, thus, promised limited or residuary sovereignty. The parties to the Delhi Agreement agreed on the extension of constitutional provisions as regards Citizenship, Fundamental Rights and the Emergency Powers to the State. In return to acceptance of citizenship law, the Government of India guaranteed constitutional protection to State laws providing for exclusive land and employment rights to the State subjects. It extended the jurisdiction of the Supreme Court and the Election Commission of India to the State. The Agreement recognized the right of Jammu and Kashmir to have its own flag. The Agreement was placed before the Constituent Assembly of Jammu and Kashmir by the Prime Minister of the State and introduced in the Parliament by Prime Minister of India. It was approved after a threadbare discussion both by the Parliament on 7th August 1952 and the State Constituent Assembly on 18th August 1952.

The Delhi Agreement 1952 reaffirmed the constitutional position that the Special status guaranteed to the State could not be interfered with, except with the concurrence of the Constituent Assembly of Jammu and Kashmir.

The Delhi Agreement after its approval by the Parliament and the State Constituent Assembly was implemented by the two Governments. The Head of the State Sadri-Riyasat (President of the State) was elected by the State Constituent Assembly and recognized by the President of India. The State Constituent Assembly adopted the State Flag. The Citizenship law was extended to the State and all other measures provided under the Agreement were taken.

Group photograph of the members of the lawmakers who drafted the Jammu and Kashmir constitution in 1951

The Constitutional (Application to Jammu and Kashmir) Order 1954 recognized law pertaining to the Permanent Residents’ of Jammu and Kashmir in operation since 1927 AD in shape of 35 A and also made modification to Article 253 of the Constitution in its application to the State. Article 35A was incorporated to provide a protective umbrella to existing and future laws conferring special rights and privileges on permanent residents or imposing on other persons any restrictions as respect to employment under the State Government, acquisition of immovable property in the State, settlement in the State or right to scholarships and such other benefits, against any challenge on the ground of violation of Part III of the Constitution. The proviso to Article 253 provided that no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the State Government. The modifications were made to give effect to the pledge made by the Government of India in the Delhi Agreement to respect the special rights and privileges of the State subjects and the right of the people of Jammu and Kashmir to be consulted while taking any decision affecting the disposition of the State.

With the adoption of the constitution of Jammu and Kashmir and the dissolution of the Constituent Assembly, the constitutional relationship became non amenable. However, Article 370 was arbitrarily eroded which encroached on the agreed autonomy of the State. To illustrate, the President of India issued an order in July 1986 extending Article 249 of the Constitution empowering Parliament to legislate on state list through the resolution of Rajya Sabha. Centre’s own appointee Mr Jagmohan, the then Governor of J&K gave the concurrence to such an assault on State autonomy. Thus from a special status Jammu and Kashmir was eventually deprived off even those rights and powers which are provided to other states.

Such a gradual and arbitrary erosion of Article 370 has had implications of the political landscape and resulted in alienation which became a fundamental reason for the political uncertainty in the State. The contraction of autonomy provided an opportunity to those who wanted to undermine the relationship of J&K state with the Union.

Breach of the promise

The President on 19th December 2018 imposed Presidential rule in Jammu and Kashmir. This was for the eighth time the State was brought under President’s rule. The President of India by a Proclamation made under article 356 of the Constitution assumed to himself all the functions of the Government of Jammu and Kashmir and all the powers vested in or exercisable by the Governor of the State under the Constitution of India or the Jammu and Kashmir Constitution. The powers of Jammu and Kashmir Legislature were made exercisable by or under the authority of the Parliament. It conspicuously also suspended operation of the first proviso to article 3 of the Constitution of India to the extent it relates to the reference by the President to the Legislature of the State and the second proviso to the article 3 that makes consent of the Jammu and Kashmir State Legislature necessary before area, boundary or name of the State is altered. The Presidential proclamation of 19th December 2018 thereby laid foundation for the constitutionally impermissible, division and downgrading of the State that was to happen a few months later. The President’s rule was on 03.07. 2019 extended for a further period of six months.

Prime Minister Narendra Modi congratulating Home Minister Amit Shah after the passage of Jammu and Kashmir Reorganization Bill in Lok Sabha on August 6, 2019.

The President on 5th August 2019 passed The Constitution (Application to Jammu and Kashmir) Order 2019 C.O. 272. The Order supersedes the Constitution (Application to Jammu and Kashmir) Order 1954 thereby making the Constitution of India applicable in its entirety to the State of Jammu and Kashmir. The Order in clear violation of the letter and spirit of the Constitution, also adds Clause (4) to Article 367 – the Interpretation clause, of the Constitution. In terms of the addition made to the clause, the expression “Constituent Assembly of the State referred to in clause (2)” in Proviso to clause (3) article 370 is to read as “Legislative Assembly of the State”. The purpose obviously is to obviate the requirement of “recommendation” by the Jammu and Kashmir Constituent Assembly under Proviso to clause (3) article 370 while declaring article 370 cease to be operative or operative only with exceptions and modifications, specified in the such Order.

The President on 6th August 2019 making use of an unconstitutionally acquired power under The Constitution (Application to Jammu and Kashmir) Order of the 5th August 2019 C.O. 272, on the recommendation of the Parliament made the Declaration C.O. 273, declaring that all the clauses of article 370 shall cease to be operative except the clause making all provisions of the Constitution applicable to the State of Jammu and Kashmir.

On 5th August 2019 itself Rajya Sabha passed Jammu and Kashmir (Reorganization) Bill 2019. The Bill in gross violation of the letter, spirit and mandate of the Constitution and the State Constitution, downgraded the State of Jammu and Kashmir and bifurcated it into two Union territories.

The State of Jammu and Kashmir granted special constitutional status on its Accession to the Dominion of India under a mechanism duly incorporated in and guaranteed under the Constitution was thus not only denuded of its special status and autonomy but downgraded and fragmented into two parts. This all was done in total disregard of the Constitution and unmindful of the solemn pledges made to the people of Jammu and Kashmir.

August 2019 assault and the Constitution

Article 370 of the Constitution guaranteeing special constitutional status to the State of Jammu of Kashmir is a self-contained constitutional provision. It begins with the expression “Notwithstanding anything in this Constitution” – called a “non obstante” clause in legal parlance. The framers of the Constitution, thus, gave article 370 an overriding effect over all other provisions of the Constitution including Article 368 where under Parliament is given the power to amend the Constitution. The Framers on the other hand laid down procedure in article 370, for declaring the article to be inoperative or operative only with exceptions and modifications. Article 370 is a self-contained constitutional provision because it does not only lay down its intent and object, scope and sweep but also the mechanism how it can be modified, amended or even declared to be inoperative.

NC delegation comprising DR Farooq Abdulah, Husnain Masoodi and Omar Abdullah calls on PM Narendra Modi on August 1, 2019.

Let us now turn to the procedure prescribed in article 370 for declaring it inoperative or to be operative with such modifications and exceptions as may be specified in such Order. Clause (3) of Article 370 confers on the President’s power to declare by the public notification that article 370 shall cease to be operative or shall be operative with such exceptions and modifications from such date as the President may specify. However, Proviso to clause (3) article 370 makes a recommendation of the Constituent Assembly convened for the purpose of framing the Constitution of the State, necessary or sine qua non for such notification.

The State Constituent Assembly was convened on 20th April 1951. The Constitution was passed on 17th October 1956 and came in force on 26th January 1957. Dr Radhakrishnan Vice President of India was amongst the dignitaries who watched its proceedings. The political leadership of entire Country felicitated the people of Jammu and Kashmir on having given unto themselves the Constitution. S/Shri Y.B. Chavan, G.B. Pant, Morarji Desai, K.N. Katju, T.T. Krishnamachari and K. Kamraj were amongst the leaders who sent their written felicitation messages. With coming into force of the Constitution, the Constituent Assembly stood dissolved in terms of a resolution passed on 17th November 1956.

The State Constituent Assembly before its dissolution on 26th January 1957 did not recommend to the President to declare that Article 370 shall cease to be operative or be operative with any exceptions and modifications. The State Constituent Assembly obviously decided to retain Article 370. Once the recommendation was not made by the State Constituent Assembly during its life time, the option to make a declaration under Article 370 (3) was closed. The President therefore could not exercise powers under clause (3) article 370. The article 370 did not obligate the State Constituent Assembly to make a recommendation mentioned in proviso to Clause (3) 370 and kept open option to allow article 370 to stay even after the State Constitution was adopted and came into force.

However, the Government of India to accomplish its malafide designs to strip the State of Jammu and Kashmir of its autonomy and special constitutional status, took an entirely unconstitutional route.

As mentioned above, the State of Jammu and Kashmir was put under the President’s rule on 19th December 2018. The President in exercise of powers

conferred under article 356 assumed to himself as President of India all the powers vested in and exercisable by the Governor of the State under the Constitution of India and the State Constitution. The Proclamation imposing President’s rule also made the powers of the Legislature of the State exercisable by or under the authority of the Parliament.

The article 356 finds place in Part XVIII of the Constitution titled EMERGENCY PROVISIONS. It is a provision to deal with an emergency arising out of failure of constitutional machinery in a State. The Presidential rule therefore has constitutionally limited life and is to end as soon as the democratically elected government is in place and constitutional machinery is restored. It is temporary and exceptional phenomenon designed to address an emergent situation until such time as an elected government is restored to power. The power of the President to legislate during the President’s rule is a pure legislative power and not a constituent power and cannot be used to amend the constitution or change the constitutional status of the State. This is the reason that the Legislature of the State brought under President’s rule is under clause (2) article 357 conferred power to alter, repeal or amend any law made during Presidential rule by the Parliament or the President or other authority, once the Proclamation ceases to operate. It follows that the President during the President’s rule, is not competent to take any long-term or policy decisions that are permanent in nature and difficult, if not impossible for the Legislature of the State to repeal, alter or modify as provided under the Constitution. Such an unconstitutional course would deprive the State of its power vested under the Constitution and would be against the principles of harmonious construction. The President in addition to this ground for other more convincing grounds, could not have taken the 5th and 6th August decisions demolishing the autonomy of State of Jammu and Kashmir and downgrading its status when the State was under President’s rule under a constitutional provision called ‘dead clause’ – rarely to be used, by none else than Dr Baba Saheb Ambedkar. The unconstitutional decision in question calls for a reversal even for this reason alone.

The Presidential Order C.O 272, purportedly passed under clause (1) article 370 is beyond the ambit of authority conferred by said provision. Firstly, the Presidential order presses into service Article 370 (1)(d) to indirectly amend article 370(3) of the Constitution. We are aware that the Founders of the Constitution in their wisdom made article 370 beyond amending power of the Parliament and incorporated in this regard an inbuilt mechanism in the Article 370 itself. The President in exercise of the powers under Article 370 (1) in flagrant violation of the letter and spirit of the provision, added clause (4) to Article 367 in its application to Jammu and Kashmir. The Presidential Order C.O. 272 in clause 2(d) provides “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State.” This amounts to amending the clause (3) Article 370 through device of adding new clause (clause 4 Article 367) the Constitution. This is impermissible. It is well-settled principle of constitutional law that “what cannot be done directly cannot be done indirectly.” It was not therefore competent for the President to travel beyond the scope of the constitutional provision sought to be used and take support of an impermissible device under the Constitution to declare that Article 370 will cease to operate.

The above discussion apart, article 367 is titled: “Interpretation”. It falls in Part XIX titled MISCELLANEOUS. The preceding provision article 366 is titled: “Definitions”. While article 366 – the definition clause, gives meaning of 30 expressions used in the Constitution, article 367 – the interpretation clause deals with interpretation of the constitutional provisions wherever necessary. It cannot be used to serve a purpose other than interpreting a constitutional provision, in case General Clauses Act 1897 made applicable for interpretation of the Constitution by this very provision, does not provide the assistance. The Presidential Order CO 272 adds clause (4)(d) to article 367 in its application to Jammu and Kashmir that is alien to the mandate and role of article 367 in as much as the CO 272 in effect uses the interpretative device to make substantive changes in a constitutional provision. The clause (4)(d ) may be noticed. It reads:

(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir —–

(d) in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State” referred to in clause (2)” shall read “Legislative Assembly of the State”.

The “Constituent Assembly” and “Legislative Assembly” are two distinct and different entities with separate and well defined roles. The “Constituent Assembly” exercises constituent powers and is tasked to make the Constitution, while as the “Legislative Assembly” exercises legislative power to enact laws. The interpretation clause cannot be used as device to replace one provision by another entirely different provision in the name of interpretation. The language of the added provision i.e. clause (4)(d) article 367, lays bare the real intention of the addition made, to amend the Proviso to Article 370(3), in as much as it does not use the expression “shall be construed as” invariably used in an interpretation clause but the expression used is “shall read.” The interpretation clause cannot command that “apples” be read as “oranges” as is being done in the present case. In short interpretation clause cannot be used to make the substantive change in a constitutional provision.

The Presidential Order C.O. 272 of 5th August is claimed to have been made in exercise of powers conferred by clause (1) of Article 370 of the Constitution with the concurrence of the Government of Jammu and Kashmir. The Framers, alive to the fallout of application of a constitutional provision beyond the subjects on which Accession was made, on the special status guaranteed to the State, made it necessary to seek concurrence of the State Government to the application of such a provision. It was realized that as the application of a constitutional provision not within the purview of the three subjects on which Jammu and Kashmir acceded to the dominion of India, would correspondingly diminish the autonomy guaranteed to the state, the concurrence of the people through the State Government should be compulsorily obtained before such a constitutional provision is extended to the State. It necessarily follows that the State Government to give concurrence on behalf of the people of the State should be an elected representative government.

A group photograph of 14 Jammu and Kashmir participants in the All Party Meeting that Prime minister Narendra Modi hosted on June 24, 2021 at his official residence. The photograph marked the beginning of the meeting.

There was not an elected representative State government in place on 5th August 2019. It was not possible for the President to get concurrence of the State Government to the Presidential Order C.O. 272. The President in effect sought his own concurrence to the Presidential Order C.O. 272 – a course not permissible under the Constitution. Here is a case where the constitutional functionary took its own consent to effect a fundamental change in the constitutional status of the State, without consulting the people affected by such change or getting concurrence of their elected Government as envisioned in the Constitution. Again clause (1) article 370 leaves a room for application of other provisions of the Constitution as the situation would demand or exigencies arise and not for application of entire constitution in one go without exceptions and modifications, through a single order. This apart, the power to be exercised by the President under President’s Rule are co-terminus with that of the State Legislative Assembly and the President cannot exercise a power not available to the Assembly. The State Assembly under proviso to Section 147 of the State Constitution is barred from making “any change in the provisions of the constitution of India as applicable in relation to the State.” The bar is with equal force applicable to the authority exercising powers of the State Assembly during President’s rule. The consent and concurrence to the C.O. 272, in the circumstances, is incompetent and unconstitutional.

The Presidential Order C.O 272 of 5th August 2019 clearly offends the mandate of article 370 and is in gross violation of the Constitution. The Presidential Order C.O. 273 of 6th August 2019 with its edifice on unconstitutional changes made by Presidential Order C.O. 272 discussed above, is also unconstitutional, made in utter disregard of the letter and spirit of the Constitution.

Having found the 5th and 6th August 2019 decisions grossly unconstitutional, let us now turn to examine the decision to downgrade and divide the State.

The article 3 of the Constitution provides for formation of new States and alteration of areas, boundaries or names of existing States. Parliament is given power to enact a law to form a new State, increase, or diminish the area of any State and alter the boundaries or name of any State. The Proviso to article 3 however forbids the introduction of a Bill in this regard in either House of Parliament, except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of a State, the Bill has been referred by the President to the Legislature of that State for expressing its views there on. Therefore, the views or the perspective of the State Legislature holds importance. The power of the Parliament in case of State of Jammu and Kashmir in this regard is subject to one more Proviso making it mandatory that no Bill for increasing or diminishing the area of the State of Jammu and Kashmir or altering its name or boundary shall be introduced in the Parliament without the consent of the Legislature of the State.

Perhaps the first photograph that shows the Jammu and Kashmir politicians at Prime Minister Narendra Modi’s Delhi residence on June 24, 2021, on the occasion of All-Party Meeting that he hosted. This was the first outreach of the Government of India for Jammu and Kashmir politicians.

A bare look at the article 3 would reveal that article does not confer power on the Parliament to dismember, downgrade or divide a State into Union territories and make the State to disappear. Furthermore, in case of the State of Jammu and Kashmir, consent of State Legislature is to be obtained before a Bill increasing or diminishing its area or altering its boundaries or name is introduced in the Parliament.

The Jammu and Kashmir Reorganization Bill, 2019 downgrading and dividing the State into two Union Territories is without jurisdiction and ultra vires of the Constitution, in as much as article 3 does not provided for or allow division of a State into Union Territories. This is how article 3 has been used from time to time since the Constitution came into force. This apart the Bill does not satisfy the requirement of obtaining consent of the State Legislature before its introduction in the Parliament.

The failure to seek consent of the State Legislature before the Bill was introduced in the Parliament may be attempted to be explained, unconvincingly though, on the ground that in the wake of President’s rule the State Legislative Assembly was dissolved and that the Proclamation of 19th December 2018, by the President in exercise of powers under article 356 imposing President’s rule on the State of Jammu and Kashmir also suspended “so much of the first proviso to Article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and second proviso to that article” and therefore compliance with Proviso to article 3 was not required.

Let us give the matter a closer look. The President under Clause (1) (c) article 356 is authorized to suspend in whole or in part the operation of any provision of the Constitution relating to anybody or authority in the State. The suspension of the constitutional provision, however must be necessary or desirable for giving effect to the objects of the Proclamation. The suspension of Proviso to article 3 cannot by any stretch of imagination be taken to be necessary or desirable for giving effect to the objects of the Proclamation.

We may also revisit the role of President during the President’s rule under article 356, as envisaged in the Constitution. It may be argued that the President having assumed to himself the powers vested in and exercisable by the Governor and having made the powers of the State Legislature, exercisable by or under authority of the Parliament, the decision to reorganize the State would fall within ambit of such powers. The argument cannot stand close scrutiny. The President’s rule has inherent limitations. It is by its very nature limited in time and scope. It normally is to end within six months – by the time the democratically elected government is to take the reins and run affairs of the State. The constitutional functionaries therefore cannot take policy decisions for the State with far-reaching consequences much less downgrading and dividing the State during the Presidential rule.

The Constitution declares India a Union of States. Each of the States is guaranteed right to its identity and territorial integrity and above all a right to be the constituent unit of the Union. The State Legislature has exclusive power to make laws for the State or any part of the State on all subjects included in the State List and in case of State of Jammu and Kashmir all the subjects not included in Union List. The executive power of the State extends to all the matters on which its Legislature can legislate. The Constitution in recognition of the rights of the States to autonomous self-government and right to identity within a federal framework, forbids any change in the area, name or boundaries of a State, except on the recommendation of the President and after obtaining views of the State. In the case of the State of Jammu and Kashmir not merely views of its Legislature are to be sought but the consent of its Legislature is to be obtained before any of the steps contemplated under article 3 namely change in area, boundaries or name, is taken. The decision to make any such changes in respect of a State is, therefore, an important policy decision involving adherence to the constitutional mechanism and cannot be taken during Presidential rule.

The strict adherence to constitutional mechanism is called for even in the case is the change is proposed is one contemplated under article 3 of the  Constitution. In the present case, the change namely dismemberment of the State and downgrading its status is unknown to article 3 and the Constitution. The Jammu and Kashmir (Reorganization) Act, 2019 in the background of the afore discussed constitutional position is therefore constitutionally invalid.

Indian first Prime Minister Pandit Jawahar Lal Nehru inaugurating the Madhavpor bridge on the just built Pathankote-Jammu road in July 1948. KL Archive Photo

Mistruths and Untruths

The Central Government, fully conscious that August 2019 decisions stripping State of Jammu and Kashmir of its special constitutional status and downgrading it and dividing into Union Territories was constitutionally impermissible and morally un-condonable, weaved a number of mistruths, untruths and half- truths to justify and market the unconstitutional decisions. The special status and autonomy promised to the State was said to have been of temporary nature, to have been an impediment in welfare legislation, disadvantageous to overall some segments of the society, promoted regional imbalance while hampering overall development. The narrative build-up, as the a brief overview would reveal, is far from reality and belied even by the official statistics.

Was Article 370 a temporary provision?

One of the mistruths is that article 370 embodying the constitutional guarantees to the State, in any case is of “temporary” nature there is no impediment in changing constitutional status of the State. The argument is specious to say the least, made unmindful of historical background, surrounding circumstances in which article 370 was incorporated in the Constitution and even text of article 370.

The State of Jammu and Kashmir was the only State to negotiate terms of its accession to the dominion of India. The State got this advantage because of the special in historical background and the events at the time of partition of India. The State of Jammu and Kashmir except a symbolic acceptance of the supremacy of British Government practically enjoyed an independent status in all the spheres. The Maharaja was repository of all the powers – executive, legislative, judicial and constituent. The State had its own full-fledged army, embarked on armed expeditions and annexed territories. With the end of British rule the State was free from treaty obligation, the British supremacy ended and the State of Jammu and Kashmir acquired a truly independent status. Maharaja wanted State to stay independent with friendly relations with both India and Pakistan. There was no legal impediment in its way, the advice to join either of the two dominions – India and Pakistan only suggested the options and was not compulsory. The position was accepted by an Indian representative to United Nation on 15th January 1948 before the UNSC. Maharaja did not join either of the dominions on 15th August 1947. He instead entered into a Standstill Agreement with Pakistan and sought a similar agreement with India. The Government of India impliedly acknowledging the right of Maharaja to stay independent, sought time to examine the matter. The State of Jammu and Kashmir stayed independent till 27th October 1947. Maharaja initially sought military assistance to repel tribal aggression and on the insistence of the Government of India that accession must precede assistance, with some reluctance acceded to the dominion of India. He made no secrets about it in his letter dated 26th October 1947 to the Governor-General while making an offer to accede to the dominion of India.

The State of Jammu and Kashmir, therefore, joined the dominion of India on defined terms and conditions laid down in the Instrument of Accession. And it was a different mechanism of Accession than followed by other princely states integrating to the dominion of India. What also made it different was that while in the case of other States the question of accession fell within the exclusive domain of Maharaja or Ruler, in the case of Jammu and Kashmir the political party spearheading freedom was taken on board, its views sought and respected. Prime Minister Nehru on 5th August 1952 told the Parliament that request for assistance apart from Maharaja had also come from “the popular party” and “if the request had come only from the Maharaja’s

Government, in all probability we would not have acceded to it” and that “it had the backing of greatest political organization there”. The “greatest political organization” having envisioned in its 1944 manifesto a truly democratic, secular and welfare State, obviously insisted on autonomy to the State to protect its identity, culture, land and employment rights. Shri Gopalaswamy Ayyangar stated in the Constituent Assembly that he “took the opportunity of consulting the members of the Kashmir Government before this draft (article 370) was finalized” Maharaja also viewed the accession restricted only to the three subjects of Defense, Foreign Affairs and Communications and not affecting his sovereignty in other areas. He earlier issued a proclamation announcing his decision to convene a “National Assembly” to frame the constitution for the State.

The chain of events would indicate that the decision as regards grant of special status to the State of Jammu and Kashmir was negotiated and settled alongside the accession and it was agreed that the special status would be constitutionally guaranteed by incorporating a provision in the Constitution of India being discussed in the Constituent Assembly and also allowing the State to have its own Constitution, defining its relation with the Union. The Constitutional guarantee contemplated came in the shape of Article 370.

The best source to have good understanding of the circumstance in whichArticle 370 found place in the Constitution and to understand true intent of the Framers would be, the Constituent Assembly debates on article 370 (draft article 306 A).

Shri N. Gopalaswami Ayyangar initiating the debate in the Constituent Assembly made a case for special status to Jammu and Kashmir by drawing distinction between other States and State of Jammu and Kashmir. He emphasized that while other “States have been integrated with the Federal republic” and “ in case of practically all States other than the State of Jammu and Kashmir, their constitutions also embodied in the Constitution of the whole of India …Kashmir’s conditions are … special and require special treatment.” Shri Ayyangar counting the “special conditions” that called for “special treatment” to Jammu and Kashmir said “we are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.” Referring to the commitment made to the people of Jammu and Kashmir that an opportunity would be given to them to give their verdict regarding accession by means of a plebiscite, Ayyangar proceeded to emphasize “We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State … it is one of our commitments to the people and Government of Kashmir that no such additions (beyond Instrument of Accession) should be made except with consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution …and the Constituent Assembly may take whatever decision it likes on these matters.” Ayyangar while emphasizing that “when the Constituent Assembly has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on the recommendation of that Constituent Assembly issue an order that this article 306A (Article 370) shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him” made it very clear that “… before he issues any order of that kind the recommendation of the Constituent Assembly will be a condition precedent.” It is pertinent to note that Shri Mahavir Tyagi, Member of the Constituent Assembly proposed an amendment to Proviso to Clause (3) of article 370 to the effect that for the word “recommendation” the word “consultation” be substituted. The proposed amendment wanted to make power conferred on the President under Clause (3) subject only to “consultation” of the Constituent Assembly and not to make the “recommendation” of the Constituent Assembly a “condition precedent.” The amendment however was not moved. The motion to add article 306A (article 370) to the Constitution was adopted on 17th October 1949 by consensus without any amendment, dissent and disagreement.

The Raj Pramukhs (Head of the State) of all the States except Jammu and Kashmir adopted and ratified the Constitution on 25th November 1949. The Ruler of the State did not follow other State Heads. He did not adopt and ratify the Constitution as was done by done by the other States. He ratified the Constitution only to the extent it was applicable to the State. The State of Jammu and Kashmir did not merge with the Union and decided to maintain its identity. It is important to note that, notwithstanding coming into force of Constitution of India on 26th January 1950, State of Jammu and Kashmir continued to follow and be governed by its Constitution of 1939 till State Constitution came into force on 26th January 1957.

The Constitutions of all other States were merged or embodied in the Constitution of India on their accession itself. This is reply to all those who insist that as accession signed by Maharaja on 26th October 1947 was in same format as signed by Rulers of other States, the State of Jammu and Kashmir did not have a right to claim special constitutional status not available to other States. They lose sight of the fact that while Rulers/ Raj pramukhs of the States ratified the Constitution in November 1949, allowing their State Constitutions to be merged with and embodied in the Constitution of India, Yuvraj , on 25th November 1949 took a different path and State did not merge with the Union but retained its identity.

The Constituent Assembly debates and all the attending circumstances would point to the conclusion that article 370 embodied a solemn pledge made by the people of India through their Constituent Assembly to the people of Jammu and Kashmir, that the people of Jammu and Kashmir will have absolute right to frame Constitution of the State as well as decide sphere of Union jurisdiction over the State.

A constitutional provision of fundamental character that governs the relationship of a federal unit with the federation in a constitutional democracy, cannot be called temporary and abrogated only because of its marginal heading or place in the body of the Constitution.

The text of article 370 also belies the notion that article 370 is temporary and may be unilaterally abrogated or tinkered with. Firstly, the article is one of 23 articles included in Part XXI of the Constitution, titled “Temporary, Transitional and Special Provisions.” The provisions providing for special status to north – eastern and some other States have been declared time and again to be of permanent character and not subject to change. Article 370 as part of the same category and class cannot be an exception. Had any provision in this category including article 370 been intended to be temporary, the Framers as in case of article 369 of the same group would have fixed its life.

The Constituent Assembly in its wisdom gave article 370 an overriding effect over all other provisions of the Constitution. Had Founders of the Constitution intended article 370 to be of temporary character, the provision could have been without any difficulty made amenable to amending power of the Constitution. This was not done. The Constituent Assembly, instead having due regard to the fact that the article 370 was in nature of a solemn pledge made to the people of Jammu and Kashmir and any change in it would impinge upon the special status guaranteed to the State, devised an inbuilt mechanism in the article 370 itself for its modification or declaring it inoperative, thus making the article a self – contained provision. The power conferred on the President to declare article not operative was consciously and intentionally made dependent on the recommendation of the State Constituent Assembly so that any change made is not only with the consent of the people but on their recommendation made through duly elected Constituent Assembly. We need to be reminded of the caution sounded by Mr. Ayyangar in the Constituent Assembly that before President “issues any order of that kind the recommendation of the Constituent Assembly will be a condition precedent.” The State Constituent Assembly did not make any such recommendation before it was dissolved on 26th January 1957. It obviously decided in favour of its retention. The article 370 therefore assumed a place of permanence in the Constitution. It is equally important to note that the Constitution did not obligate the State Constituent Assembly to make a recommendation before its dissolution, to the President to declare the article 370 cease to operate. It left scope for both article 370 and the State Constitution to coexist as both shared common object to safeguard special status and autonomy of Jammu and Kashmir.

The Delhi Agreement 1952 between the Union Government and State Government reconfirmed autonomy guaranteed to the State, recorded agreement of the Union Government that in case of Jammu and Kashmir the residuary powers vested in the State ; that the State legislature has power to make laws for conferring special rights and privileges on state subjects, the State shall have its own flag and that head of State shall be elected by the State legislature and recognized by the President of India. The Delhi Agreement 1952 approved by the Parliament on 7th August 1952 and State Constituent Assembly on 18th August 1952 reiterated what was laid down in the Constitution as regards special status of the State of Jammu and Kashmir and put a seal of finality on the article 370. Had it been constitutionally permissible to amend, modify or make article 370 inoperative without the consent of people of Jammu and Kashmir, the need to negotiate a new agreement – Delhi Agreement 1952 would not have arisen.

The Government of India in Kashmir Accord, 1975 signed with the political leadership of the State, affirmed its commitment to article 370 and reiterated that State of Jammu and Kashmir shall in its relation with the Union continue to be governed by article 370 of the Constitution. The Union Government further agreed that residuary powers of legislation shall remain with the State. The Accord was presented before and endorsed by the Parliament.

The statement that Article 370 was of temporary nature and changes made on 5th August through C.O. 272 and its abrogation on 6th August by C.O. 273 was permissible because of its temporary status, is not only preposterous but untenable in law and fact. The article 370 laid a permanent constitutional mechanism to govern relation between the State and the Union and embodied the pledges made and guarantees extended by people of the Country to people of Jammu and Kashmir and cannot be obliterated from Constitution.

The people of J&K had opted to become a part of secular India not simply by virtue of the Instrument of Accession, which is the legal basis of the association of the state with India, but also because of those promises of building a progressive, pluralist, secular India in which the people of J&K were to have a very special status and the maximum degree of Autonomy within the Union. Those promises were reflected in Article 370 of the Indian Constitution and contained in the Constitution of J&K itself. There are constitutional obligations without which the Instrument of Accession itself is rendered meaningless. To deny this historical fact, as the BJP and its affiliates functionally do, is to undermine the Union itself.

Was Special status a disadvantage to some segments?

The August 2019 decisions are marketed by the Union Government on the plank that the articles 370 and 35A put some segments of society to disadvantage. The special status, it is argued, in particular, discriminated against the West Pakistan Refugees (WPR) and denied them constitutional rights.

The partition saw 14.5 million people migrate from one to other country – one of the largest migrations in the history. Though Kashmir maintained communal harmony when the Sub Continent was engulfed in flames of unprecedented violence, yet it had its share of refugees and internally displaced people.

The State received people affected by violence in wake of partition from two sources – within and from outside the State.

A few lac people in the second half of 1947 uprooted from the areas, now on the other side of LoC, migrated to Jammu and adjoining areas. They were known as Displaced Persons (DPs). The displaced were State Subjects and the only problem to be addressed was their relief and rehabilitation. There was not any constitutional issue involved in their settlement and rehabilitation.

The State government took adequate steps for providing immediate relief to the DPs and organized their rehabilitation. The government allotted residential sites and agricultural land, cash assistance per unit to help them pick up threads of life.

The other group of people affected by the violence, that turned to the State was from West Pakistan. The official records indicate that 5764 families from Sialkot and adjoining areas, of West Pakistan in 1947 crossed over to the State and settled in camps at Ranbir Singh Pora Jammu, Samba and Kathua. They were citizens of undivided India (now Pakistan) and came to be known as West Pakistan Refugees (WPRs). They were not State Subjects of Jammu and Kashmir and therefore, did not have citizenship rights. Needless to state that State Subject law 1927 was in the nature of citizenship law and determined the citizenship rights.

The dominions of India and Pakistan were under a mutual obligation to give citizenship status to the people migrating from one dominion to other dominion and organize their rehabilitation. The obligation to secure and make available all the constitutional and legal rights to WPRs, as was done in the case of other refugees from East and West Pakistan and to rehabilitate them at a suitable place in the country was therefore on the Union Government. Though treated as citizens yet they were not rehabilitated at the place of their choice in the country so that they could enjoy all the attributes of citizenship.

The citizenship did not make them State Subjects and the special rights and privileges guaranteed exclusively to the State Subjects could not be available to them. The problem of WPRs is therefore not to be seen through prism of so called “discrimination” but fall out of a legal position. The difficulties faced by the miniscule population of Gorkhas and Valmiki Samaj stem from the same legal background. The problem in any case is not unique to Jammu and Kashmir. The eastern States having special rights and privileges in the matters of land and employment guaranteed to the locals, experience same problems as regards East Pakistan (now Bangladesh) Refugees (EPRs) and have been resolved by legal devices and not by tinkering with the Constitution.

The State government alive to the plight of WPRs and the obligations of a welfare State, has over the years taken important steps to ameliorate their lot. The Government has allotted land on lease to WPR families to enable them build their residential houses and have a roof over their head. They have a right to cast their votes in Parliament elections and subject to eligibility compete for employment under Central Government. The State Government in 2007 appointed Wadhwa Committee to look into their problems and recommend steps to take remedial measures and in 2016 decided to grant Domicile Certificates to WPRs. A scheme for disbursement of relief to the WPRs was sanctioned in 2017. These are only some of the steps taken over the years to redress the grievances and minimize the hardship of WPRs and other smaller groups.

The other segment that is time and again referred to as disadvantaged by the special status is the women married to non -State Subjects. It is complained that while a woman married to a State Subject retains her State Subject status on marriage, a woman married to a non -State Subject loses her status and is debarred from enjoying the rights and privileges otherwise available to her. The complaint is made ignoring the recent developments in State Subject law. It stands settled by judicial pronouncement that a woman does not lose her “Permanent Resident” status on her marriage to a non- State Subject and therefore is not stripped of her rights and privileges on such marriage. It to be appreciated that laws relating to juvenile justice, gender justice, justice to last in the queue and like, are evolving concepts and with every passing day we try to cover the unattended areas. The right of a Hindu daughter to actually get her share in ancestral/ JHF property became a reality five decades after the law was codified.

The brief discussion leads to the conclusion that neither WPR issue nor so called issue of gender justice can justify dismantling the special status and autonomy, solemnly guaranteed to the State by the people of the country through Constituent Assembly and incorporated in Article 370 in the Constitution. The problem if any experienced by any segment of population can be addressed by employing the available legal device and not denuding 13 million people of the State of their identity and invaluable rights.

Was Article 370 an impediment in welfare legislation?

The contention that the Article 370 stood in the way of progressive and welfare legislation is belied by the facts. The State has been ahead of all other States in legislation protecting rights of children, women, small farmers, workmen and other weaker sections and insular groups.

The State enacted Infant Marriages Prevention law prohibiting child marriage way back in 1928. The State Constitution was first to recognize ‘right to happy childhood’ in 1957, when the concept was unknown to sub-continent. The Children Act for protection of child delinquents was enacted in 1970, followed by Juvenile Justice Act in 1998, Juvenile Justice (Care and Protection of Children) Act in 2013 and Protection of Children From Sexual Violence Act i 2018. As regards laws to secure gender justice, Protection of Women from Domestic Violence Act was enacted in 2010, State Commission of Women Act was passed in 1999,State Commission of Protection of Women and Child Rights Act in 2018 and Preconception and Prenatal Selection Act in 2002. Maintenance and Welfare of Parents and Senior Citizens Act was enacted in 2014. The list goes on. Be it any aspect of human activity and any segment of society, State of Jammu and Kashmir has more progressive and more effective laws and institutions than any other State.

The Jammu and Kashmir Big Estates Abolition Act 1950 brought an end to absentee landlordism and facilitated distribution of half a million acres of agricultural land under ‘land to tiller’ program without compensation to 7,50,000 small farmers, and agricultural workers –2,50,000 or 70% amongst them Schedule Castes in Jammu region ,is widely acclaimed as first such reform in the Indian subcontinent. Michael Brecher renowned political scientist called the reform “most sweeping agrarian reforms undertaken in the subcontinent since partition.” The 1950 reforms were followed by Jammu and Kashmir Agrarian Reforms Act 1976 to take ahead the land to tiller program and further reduce the ceiling area of land holdings. The Distressed

Debtors Relief Act to grant relief to the distressed debtors was enacted in 1949 followed by Restitution Act in 1950 to help the debtors get back mortgaged properties The Human Rights Act, Right to Information Act ,Consumer Protection Act, Reservation Act, Prevention of Corruption Act, Vigilance Commission Act, Accountability Commission Act and the entire labour code – Payment of Wages, Workmen’s Compensation, Trade Union, Industrial Disputes and score of other laws, also deserve a mention and so do the institutions like Human Rights Commission, Information Commission, State Accountability Commission, Consumer Protection Commission, Chief Vigilance Commissioner, Women and Child Development Commission, Backward Classes Commission, Labour Court and Industrial Tribunal,

ICDS and ICPS set up under these laws that were in place before the special status was dismantled.

The case sought to be built up to justify assault on articles 370 and 35A is, therefore, devoid of any substance. The mistruths are cooked up and lies weaved to lay foundation of disinformation campaign that the State lagged behind in progressive and welfare legislation. The facts speak otherwise.

 Did Article 370 cause disparity and administrative laxity?

The articles 35A and 370 by facilitating uniform empowerment of disempowered and deprived masses across the regions and communities promoted regional harmony and united the people. What was nowhere achieved in the Country was achieved in Jammu and Kashmir soon after the independence because of the special constitutional status guaranteed to the State. Jean Dreze, the renowned economist and co-author of Hunger and Public Action with Noble laureate Amritya Sen, refuting the claim that as Jammu and Kashmir was a backward State article 370 was required to be removed, insists “Because of Article370, Jammu and Kashmir has its own constitution and this constitution allowed distribution of land which the constitution of India would not have allowed. I think it played an important part in reducing poverty and in laying the foundation of a relatively egalitarian economy in rural areas”. The relief under debt relief laws in 1949 and 1950 to the tiny and small farmers and artisans distressed by the practice of usury was not restricted to a region or a community but succour to the victims in all the regions and to all communities including in scheduled tribe and scheduled caste segments. The political and financial autonomy facilitated even-handed distribution of vital resources across Jammu, Kashmir and Ladakh.

The special constitutional status led to political empowerment of all regions, in as much as, the people of Jammu and Kashmir got an opportunity to give unto themselves a constitution delineating the political and developmental goals. The elected representatives of all the regions were involved in making of the constitution.

The State scripted history in regional harmony, without a parallel in the country, when the constituent assembly elected the Yuraj – de facto Maharaja, as SadriRiyasat (head of the state). It pertinent to note that Sadr-Riyasat was from the autocratic regime against which people of Jammu and Kashmir demanding responsible government were engaged in a bitter struggle. He occupied the highest office in the State for twenty-five years. The people of all the regions made significant contribution in development of the State and nation building. Two eminent lawyers from Jammu region/province were elevated as Chief Justice of the Supreme Court of India, other two senior lawyers from the same region also adored the Bench. The people with merit and mettle form all the regions occupied prestigious positions as ambassadors representing the India in other countries, governors and chief Justices of High Courts and served the nation to the best of their capabilities.

The State of Jammu and Kashmir had the distinction of having an efficient administrative set up. The State embarked on a vigorous program of decentralization of administration so as to make benefits available at grassroots level. The Jammu and Kashmir Ladakh Autonomous Hill Development Councils Act 1995, setting up of Leh and Kargil Hill Development Councils and Single Line Administration introduced half century back are best examples of devolution of power. The State with nine Universities, one amongst these for less than half a million people in

Ladakh and scores of degree colleges was able to create a vibrant academic ecosystem in Jammu and Kashmir. The State government a few decades back initiated an ambitious affirmative action program making provision for reservation in government employment and professional colleges in favor of scheduled tribes, scheduled castes, residents of reserved backward areas, residents of areas adjoining LOC, differently abled persons, children of defense personnel and other disadvantageous groups. The State was first in the country to reserve half of the seats in medical colleges in favour of women candidates. The impact of these and other measures is duly reflected in official statistics indicators like HDI and NHFS-4 and NHFS-5.

The Jammu and Kashmir showcased as the most prosperous State in mid- 2019 is shockingly portrayed as the most backward State only to justify the wholly unjustifiable assault on the special status of the State.

Supreme Court on article 370

The Supreme Court during last 70 years was called upon a few times to examine nature of article 370 and the special constitutional status granted to State of Jammu and Kashmir. The first case – Prem Nath Kaul (1959) related to the status of Maharaja, after he signed the Instrument of Accession on 26th October 1947 and it was accepted by the Governor General. The challenge was to Yuraj’s power to enact Big Landed Estates Abolition Act on October 17 1950. The massive agrarian reforms law was enacted by the Yuraj in exercise of his legislative powers under Jammu and Kashmir Constitutional Act 1939.

The law was enacted – i) 3 years after the State acceded to dominion of India ii) a year after Yuraj on 25th November 1949 ratified Constitution to the extent applicable to State iii) a little less than a year after Constitution came into force and the first Constitution (Application to Jammu and Kashmir) Order, 1950 applying some constitutional provisions applicable to the State, was made by the President. Pertinent to note that Maharaja earlier on 20th June 1948 by a proclamation authorized Yuraj to exercise all the powers available to Maharaja as Ruler of the State. The law was challenged on various grounds including the ground after accession was made Maharaja was reduced to a constitutional head and did not have power to enact the law. The challenge failed before the High Court and the matter landed in the Supreme Court.

The five Judge Bench of the Apex Court in Prem Nath Kaul’s case (1959) held that “With the lapse of British paramountcy …the Maharaja…in the international law could conceivably claim the status of an independent sovereign” and“ It was unreasonable to suggest the provisions of the Instrument of Accession signed by the Maharaja on October 25, affected his sovereignty, in view of cl. 6 thereof, which expressly recognized its continuance in and over his State.” The Court held that “The Maharaja was himself an absolute monarch and there could be no question as to his power of delegation.” The Court held the Act to be valid. The Judicial pronouncement assumes importance against the backdrop of repeated argument that the State of Jammu and Kashmir followed the same route of accession and therefore any claim of special status is misplaced or that the State on its accession like other States merged with the dominion of India. The verdict belies both the notions The common thread that runs through subsequent Supreme Judgments on special status to the State, is that the special status was granted in recognition of the special circumstances of the State and that article 370 was allowed to stay even after State Constitution came in force and was to continue to enable President to exercise his powers under it as and when necessary. In Puranlal Lakhanpal (1961) the Court observed that “object behind enacting Article 370 (1) was to recognize the special position of the State of Jammu and Kashmir.” The S Court in Sampat Prakash (1969) held: “ There are…stronger reasons for holding that the provisions of this article continued in force and remained effective even after the Constituent Assembly of the State had passed the Constitution of the State.” The Court pointing out that the Constituent Assembly did not make any recommendation in terms of proviso to article 370(3) observed: “This makes it very clear that the Constituent Assembly of the State did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article.” The Court held that proviso added to article 368 in its application to the State also points to the continued exercise of powers under article 370 from time to time so that  subsequent amendments to the Constitution are made applicable to the State.

The Supreme Court in State Bank of India (2017) ,took an overview of all the previous cases and judgments rendered and principles laid down. The Court held “The first thing that is noticed in Article is that the marginal note states that it is a temporary provision with respect to the Jammu and Kashmir. However, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, Article 370(3) makes it clear that this article shall cease to be operative only from such date as the President may public notification declare. And this cannot be done under the proviso to Article 370(3) unless there is a recommendation of the Constituent Assembly of the State of J&K so to do.” The Court observed: “It is important to note that Article 370(2) does not in any manner state that the said article shall cease on the completion of the work of the Constituent Assembly or its dissolution.  Thus, though the marginal note refers to Article 370 as only temporary provision, it in fact is in current usage and will continue until specified event in clause (3) of the said article takes place.”

The judicial pronouncement made by the highest constitutional court lead to the conclusion that article 370 was incorporated in the Constitution to recognize special position of State of Jammu and Kashmir and provide a constitutional mechanism to delineate the respective jurisdiction of State and Union legislatures and article notwithstanding the marginal note has over the years attained the place of permanence in the Constitution.

Economic Development sluggish before August 2019?

Ever since the abrogation of Article 370 and 35A in August 2019, alongside the suppression of dissent and democratic functioning and partly to divert attention from that, the spokespersons and supporters of the government at the Centre and in the Union Territory of Jammu and Kashmir have launched a propaganda blitz On matters relating to the economic development of the region. The effort aims to paint a picture of poor economic performance in the state of J&K prior to August 2019 and argue that steps initiated since August 2019 are transforming the region, advancing economic development and improving the well-being of the people of the erstwhile State

There are three levels at which this discourse is conducted. The first is to cite selective or erroneous data that presents a poor picture of pre-2019 development performance and points to a revival in the short post-2019 period. The second is to construct a false story that suggests that the corruption in and mis-governance by consecutive state governments had damaged or contributed little to furthering the development of the state before 2019, whereas the central government and the new administration in place after 2019 have, starting 2014 and especially after 2019,initiated projects involving thousands of crores of public expenditure that would transform the state with better infrastructure, greater private sector participation ,enhanced employment opportunities and significantly enhanced welfare. The third is to say that militant activity had worsened an already bad economic situation, imposing huge burdens on a population that was looking for peace and economic improvement as an integral part of the Indian Union.

Human Development indicators bust the myth

Before addressing in detail the false critic is a miss and claims made in the course of the propaganda blitz, engaged in by even the Prime Minister and Home Minister, much of it can be laid to rest by examining the state’s pre-2019record on the growth and human development front. Even if we take the 2011-12 to 2018-19 periods just prior to the abrogation of article 370, the annual compound growth rate of the gross state domestic production in J&K, at 10.5per cent, was higher than that in Maharashtra, Chhattisgarh, Jharkhand and Punjab. More importantly, the state has also an extremely favourable human development record to its credit. These are some salient features of that record:

In 2017, Jammu and Kashmir’s Human Development Index (HDI) was a t0.68, higher than most states, including some like Andhra Pradesh and Gujarat. It ranked 12th among 29 states .The Human Development Index (HDI) is a composite index of life expectancy ,education ,and per capita income indicators.

HDI indicators pertaining to literacy rates, marriage and fertility, child sex ratio and school attendance rates for girls over 6 years are better than many states like UP Bihar, Jharkhand, Chhattisgarh, and MP.

In terms of the index of substantial human development over 1990-2017 of UNDP for states in India the Economic Survey,2018-2019 ranks J&K in the satisfactory category much ahead of most states in India.

The NITI Aayog’s Sustainable Development Goals (SDG) index classifying States &UT ’s based on a set of global goals and 169 targets to be achieved by 2030 placed J&K in the “Performer” category along-side Gujarat, Goa, Maharashtra and Punjab.

J&K stood eighth in terms of poverty rate (10.35)%. Goa had the lowest poverty rate of 5.09%, while Chhattisgarh had the highest poverty rate of 39.93%.The national average was 21.92%.

Jammu and Kashmir ranked third out of 22 States in terms of life expectancy. The state had an average life expectancy of 73.5 between 2012-16. In Kerala with the highest life expectancy the figure was 75.1 and national average was 68.7.

On average 3,060 persons were served by one government doctor in J&K in 2018.The state ranked 7th among states in terms of how low this number was.  It ranks 10th in terms of infant mortality in 2016. Its infant mortality rate

(IMR) of 24 infant deaths per 1000 was significantly below the national average for IMR of 31and that of Madhya Pradesh, which was the highest (47).  A comparison of NFHS-4 (2015-2016) and NFHS -3 (2005-2006) pointed to significant improvement in terms of the decline of child and infant mortality rates in J&K. The sex ratio at birth also improved substantially.

School attendance for female children above six years went up from57.5% in 2005-2006 to65.5% in 2015-2016.  NFHS data reflect a large increase in the percentage of households with electricity from (93%) to (97%) Sanitation (from 24.5% to 52.5%) using clean fuel for cooking (from 38% to 58%), improved sources of drinking water (from 81% to89%)·

J&K is perhaps the only State in India that has No Homeless or Shelter less population. Households in J&K have the second lowest incidence of indebtedness in the country. Farmers’ suicide so hunger deaths are unheard of in J&K.

The NFHS-4 (2015-2016) data on women with bank accounts showed an increase from 22% to 60% much higher than the all India average scoring over States of Bihar, Haryana, AP, Telengana, Odhisha, Rajasthan, MP and Karnataka.

The percentage of women using mobile phones at 54% in 2015-2016 is much higher than comparable figures for Jharkhand (35%) UP (37%) Uttrakhand (55%) and Chhattisgarh (31%).

According to NFHS-4 percent of married women (15yrs-54 yrs) participating in overall household decision making ranks J&K much higher than most states in the Country.

The canard about mis-governance

Despite this and other similar evidence acclaim has been made that poor governance under Article 370 hampered development and encouraged terrorist activity .Not only is the claim that economic backwardness is responsible for whatever terrorist activity exists misplaced, but so also is the claim that J&K is economically backward. In fact, the evidence cited above indicates that, in spite of the last 30 years’ turmoil, as compared with other states ,Jammu and Kashmir excels in the areas of education, health, infrastructural development. It also has a good record with respect to agriculture/horticulture production and village development, with road access to even the remote corners of the state. It was under Article 370 that sweeping and historic land reforms were implemented in the state ,giving land to the tiller, and benefiting 700,000 landless agriculturalists, consisting of downtrodden and poverty-stricken Muslims as well as 250 ,000 lower caste Hindus who overnight became owners of the land they cultivated .One consequence of these land reforms is the near-absence of landlessness. Agricultural labourers constitute less than 2% of the work force, as compared with an all-India average of 23%. Along with a massive debt write-off, land reforms transformed the lives of rural masses and contributed to J&K’s better-than national average human development indicators.

Implementation of welfare schemes

J&K’s achievements in implementing welfare schemes include the following: 100% achievements in the following schemes

SAUBHAGYA:3,57,405 beneficiaries covered.
PM Ujjwala Yojana(PMUY):12,60,685 beneficiaries
UJALA:15,90,873 beneficiaries
Mission Indra dhanush (Jammu):1353 children and 381pregnant Women vaccinated.
Mission Indra dhanush Aspirational District sunder GSA (Baramulla & Kupwara):2259children and 320women vaccinated
Swachh Bharat Mission:100% open defecation free
Integrated Social Security (State Scheme):5,92,333beneficiaries

Other achievements

AYUSHMANBHARAT:11.41Lakh gold cards generated 3,48,370 families benefitted. J&K among leading State/UTs
PMAY(G):77252houses sanctioned (June2020)
PMAY(U):92%of target sanctioned in June 2020 as against 41% in March 2019. 72730 houses sanctioned (June2020)
HIMAYAT:74324 candidates approved for training .No of training centres trebled in last 2years.
PMKISAN:J&K leading in implementation.9.86lakh beneficiaries
Pension and scholarship benefits: Total beneficiaries 7,42,781 including beneficiaries of State ISSS Scheme.
Minority pre-matric scholarship:4,76,670 beneficiaries.

Ignoring all of these achievements, the blatantly wrong propaganda about the state’s poor performance attributes this alleged shortfall to the bogey of misgovernance by government prior to the abrogation of Article 370. Dynastic politics has led to the loot of Kashmir’s wealth and Article 370 gave freedom to rulers to indulge in large scale corruption, it is alleged. This is nothing but manufactured, false and defamatory propaganda.

The case is also made that the state government squandered the funds it received as a result of its special status. The truth is that the state only received slightly more than per capita average given to special category states, and less than that given to Arunachal Pradesh and Sikkim. J&K received Rs 15,580 per person, which was only slightly more than the national average of Rs 14,080 per person and way below the Rs 55,254 and 51,128received by Arunachal Pradesh and Sikkim.

The major reason for economic distress in J&K is the Indus Water treaty. This treaty restricts J&K from making full use of its water resources, the only natural resource available in abundance. J&K has a strong claim for compensation for IWT but in the meantime it is the responsibility of the centre to provide adequate financial support.

It is also claimed that relief packages totalling Rs. 80-85,000 crore have been mismanaged and funds diverted. The fact of the matter is that J&K is yet to receive much by way of funds from the relief packages, which are merely announcements aimed at winning the support of voters. The State has not received even 1/5th of the announced packages. The package announced after the devastating Kashmir flood package of 2014 is yet to be received in spite of the BJP sharing power for three years from2015-2018.

It was On 7 November, 2015, that Prime Minister Narendra Modi in Srinagar announced a reconstruction Programme during the PDP-BJP coalition government of about Rs 80,000 crore known as the Prime Minister’s Development Package, to strengthen the social-economic infrastructure and for the development of Jammu &Kashmir. Obviously little was actually transferred because now it is being claimed that after the re-organization of the erstwhile state, 53 projects of Rs 58,477crores in J&K and nine projects of Rs 21,441 crore in Ladakh are under progress which is part of the PM’s 2015 package. This is also flagged as an achievement attributable to the abrogation of Article 370, rather than proof of the hypocrisy of the central government prior to the abrogation. Moreover, many mega projects like the Central University, Banihal Tunnel, Nashri Tunnel and ZMorh Tunnel being highlighted by the current ruling dispensation are projects started during the UPA2 regime under the Prime Ministership of Dr Manmohan Singh.

Erroneous declarations

Since the propaganda blitz has attempted to discredit the state’s record at a more granular level, it would be useful to examine some of those erroneous declarations seriatim. An example of rank misinformation is the claim that there is no free education in J&K for children in the age group 6-14years. In fact, the foundation for mass education in the state was laid by Sheikh Mohammad Abdullah in 1948, though the campaign for ‘education for all’ started way back in 1937, with stress on education for the girl child. J&K was the first state in India to institute free education up to university level and compulsory primary education in 1948. J&K was also the first State in India to make education compulsory for girls. The state provides 50 per cent reservation for weaker sections in schools and colleges and 33per centre salvation for girls in professional colleges.

These achievements have been setback by the crackdown after the abrogation of Article 370, which has been accompanied by an attack on educational institutions and internet shutdowns, despite the promise that new vistas will open on the educational front and that schools and colleges will return to normal functioning after the abrogation of Article 370. Education has taken a severe hit over the last two years from communication blockades and the inability to attend classes, with students left worrying about their future as many are losing on school years and opportunities of further studies.

The arbitrary takeover of schools and colleges to accommodate the additional armed and paramilitary forces that moved into the valley made matters worse, and continues to affect the access of students to their safe spaces of learning

Despite the reservation record of J&K, a canard is sought to be spread that SCs, STs and OBCs have not been receiving the special benefits due to them under affirmative action programs because of Article 370. This is far from true. SCs/STs/OBCs are fully protected in the state and receive benefits as per law. The conditions of SCs/STs/OBCs are far better in J&K than in most areas of the country. The J&K SC/ST/OBC development corporation undertakes a wide range of activities including provision of loans and subsidies to any person in these categories to start a profession, trade, or unit in farm, non-farm and service sectors .Loans provided by arrangement with banks are supported with direct financing collaborations with Apex corporations like NSFDC, NBCFDC, and NMDFC etc. Under the direct financing scheme, the patter of loan assistance pattern is 80/85 percent from the Apex Corporation, a term loan from a State Corporation and Bank Beneficiary contribution of 5%-10%. Subsidies to SC/ST beneficiaries are being provided at the rate of 50% of unit cost subject to maximum of Rs 6,000 and of 33.33% upto a maximum of Rs3,000 to OBC beneficiaries .The J&KSC/ST/OBC corporation organizes training programs for weaker sections in trades like carpentry, electrical work, welding, cutting and tailoring, motor maintenance and computer servicing.

The corporation has further widened its collaboration with NDNMDFC for establishing various direct financing schemes for Auto Rikshaws, Tailoring shops, Carpentry establishments and Photo copier units etc. During 1991two ethnic groups, Gujjars and Bakarwals, were declared as Schedule Tribes in the state. A tribal development cell was created in the Social Welfare Department for funding tribal welfare activities and utilizing Government of India assistance under the Tribal Sub Plan for setting up income generating activities in the areas inhabited by the community.

In some instances, history is conveniently forgotten to suit the propaganda machine. An example is the claim that government employees were deprived of the benefits provided by the 7th Pay Commission because of the disconnect from national decisions resulting from Article 370. The truth is that recommendations of all past Pay Commissions have been implemented in J&K, and implementation of the 7th Pay Commission’s recommendations was in process. Given the centralization of resources that has intensified under the NDA regime, states with limited taxation powers need to fiscally manoeuvre or release resources for increases in expenditure of the kind that implementation of a new Pay Commission’s recommendations involve.

The other area that has been the victim of propaganda is the health sector in the state. Neglect by government prior to 2019, it is argued, had left the health infrastructure in J&K in poor shape. Nothing can be further from the truth. As noted earlier; J&K is ranked very high in the country in terms of health facilities and boasts of primary and secondary facilities in far flung areas across the state. Doctors from J&K enjoy a good reputation worldwide.

It is the undemocratic intervention by the Centre that has setback health provision. Some of the most heart wrenching stories that emerge in the past two years was of patients beings hut away from essential or emergency medical care by communication and travel restrictions, complete or near total collapse of financial assistance schemes, assaults on doctors and medical workers, and conditions that required pregnant women to journey several kilometres on foot as they went in to labour. Matters were made worse when the COVID-19 pandemic hit Kashmir just as the state was emerging from month of restrictions, rushing it into another lockdown with more uncertainty and fear.

The Way Forward

What is the way forward and how to come out of this imbroglio? The way ahead is deep introspection and course correction. We may recall that this paper at the beginning referred to satyameva jayate– the national Motto meaning ‘truth alone prevails, to underscore that the truth is a core constitutional value and in case of August’ 2019, assault on the autonomy of Jammu and Kashmir, truth has been the first casualty. While delineating the way ahead, it would be appropriate to refer once again to the core values emphasizing “introspection and course correction” as means of elevation of self and “arrogance” as means of its degradation.

The Government of India must without losing any time go for a dispassionate appraisal of the August’2019 assault on the special status and territorial integrity of State of Jammu and Kashmir. On such introspection, the Government of India will undoubtedly realize that it has not been only a misadventure but gross violation of Constitution and a huge betrayal. It will be sufficiently clear that the unilateral and unethical decisions pushed the entire region to uncertainty and widened the gulf between the people of Jammu and Kashmir and rest of the country and above all resulted in an avoidable drain on the scarce and precious resources to maintain calm on the streets. The Government of India should urgently undertake an exercise of introspection and course correction, revoke all the decisions taken in August’ 2019 and restore the autonomous status of Jammu and Kashmir.

The least, the Government of India could do, is to grant real autonomy to the J&K state as envisioned by the Constituent Assembly of India and ratified by the Constituent Assembly of Jammu & Kashmir. And work out legal mechanism in consultation with the J&K legislature of real political and administrative devolutions to the respective regions and sub-regions within the frame work of that autonomy. Any attempt or any plan/proposals for divisions, bifurcations and trifurcations must be rejected. This is bound to communalize the regions and communities permanently.

A careful and elaborate mechanism for the process of reconciliation and sustainable peace has to be worked out. At the same time, we appeal the people of all the regions, sub regions, ethnic groups and communities of State that we must uphold and strengthen our age old relationship and resolve to move forward to shape out future together. Our people have passed through tragedies and our recent past has been quite painful. Tragedies cannot and should not divide us further. Grievances, if any, can be addressed and removed; but in no case should these weaken the historic bonds of our relationship. Any division on any pretext would be detrimental to this cherished goal.

We appeal the Indian Parliament, all secular democratic parties and civil society at large to realize the serious consequences of the abrogation of Article 370. We also call upon them to analyse whether the projected objectives and the narrative built up in favour of the regressive decision of doing away with the special position of the erstwhile state, are justified or are the result of divisive and highly authoritarian policies of the government. This should not be seen as an isolated instance or aberration but a serious attack on federalism and democracy.

They must come forward and raise their voice against this unconstitutional assault on the rights of the people of Jammu & Kashmir. We all must unitedly struggle in defence of democracy, federalism and unity of our people.

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