Aiming to realize its long-cherished dream of making the disputed state of Jammu and Kashmir an “integral part” of India, the BJP-led Indian government resorted to employ an unprecedented but hawkish tool of statecraft in August last year. Through a clever ‘constitutional’ move, it instantly stripped the troubled Himalayan state of its special constitutional status it had been enjoying since 1949. Following a resolution passed by the Indian parliament to this effect, Article 370 of the Indian Constitution was rendered “inoperative” through issuance of two consecutive Presidential Orders. Such move has resulted in abrogating the Constitution of the state of Jammu and Kashmir, including its Article 35A, promulgated through a Presidential Order in 1954. Consequently, the disputed state has lost its semi-autonomous constitutional status within the union of India. Later in October last year, the Indian parliament passed The Jammu and Kashmir Reorganization Act-2019 whereby the Indian-held Kashmir was bifurcated into two Union Territories (Jammu & Kashmir, and Ladakh), to be governed directly by the Central Government of India.

The Indian authorities, adding to the miseries of the already-suffering Kashmiris, have been maintaining a strict curfew and media blackout in the disputed valley since August 5. There is also looming a humanitarian crisis in the valley owing to such prolonged restrictions. The people of Kashmir have out-rightly rejected the unilateral and arbitrary Indian move of revocation of special constitutional status of Indian-occupied Kashmir (IOK). Similarly, both the pro-freedom Joint Resistance Leadership (JRL) and pro-India Kashmiri politicians are on the same wavelength as far as this single issue is concerned. Mehbooba Mufti, the former Chief Minister of IOK, who was also a coalition partner of BJP in the state, called August 5 “the darkest day in Indian democracy”. Omar Abdullah, another former CM of IOK, called this Indian action a “total betrayal of trust” and an “aggression against the people of state”.

Article 370 is the Kashmir-specific provision in the Indian Constitution. It was essentially incorporated in the Constitution in compliance with Clause 7 of the Instrument of the Accession (IOA) signed by the Maharaja Hari Singh in October 1947, declaring that the state of J&K would not be compelled to accept any future constitution of India. The State was to draft its own constitution, and to decide what additional powers to extend to Central Government. Article 370 explains a legal relationship between the State of J&K and the Union of India. It allowed the State to have its own constitution after exempting it from the complete applicability of the Indian Constitution.

Article 370 empowered the President of India to shape the contours of the Constitution of State of J&K, subject to the Instrument of Accession, with the “concurrence” of the Government of the State. So, a number of Presentational Orders under Article 370 were issued for this specific purpose. One of such Presentational Orders was issued in 1954 whereby the Constitution of state of J&K was duly adopted. This Constitution eclipsed the power of the Central Legislature of India over the State by limiting it to only three subjects- defence, foreign affairs and communications. It also substantially limited the administrative powers of the Central Government to the State. Article 35A was an important provision in the Constitution of J&K, though it is largely misconstrued as a provision of the Indian Constitution, which empowered the legislature of the State to define the status of “permanent residents” and confer special rights and privileges to those permanent residents. It prohibited non-permanent residents from permanent settlement in the State, and from acquiring immovable property, government jobs, aid and scholarship in the State.

The framers of Indian Constitution, noticeably, were not in serious mood of permanently according a semi-autonomous constitutional status to State of J&K from the outset. They intentionally left some lacunas or gaps in Article 370 which were bound to undermine its very efficacy and durability in the long run. Firstly, they named Article 370 as “Temporary provisions with respect to State of Jammu and Kashmir”. It simply means that they were really reluctant to grant IOK a special constitutional status perpetually. Secondly, they empowered President of India, under clause (3) of Article 370, to render this Kashmir-specific constitutional provision absolutely or provisionally “inoperative” upon the recommendation of the Constituent Assembly of the State. Luckily however, the Constituent Assembly of J&K, which continued to exist till 1957, never made such recommendations giving permanency to these “temporary provisions”.

The ruling BJP party has long been officially favoring the ‘integration’ of IOK into the Union of India after scraping Article 370. So having secured the required parliamentary support in the country following the 2019 general elections, the BJP-led government decided to absorb IOK ‘constitutionally’. It essentially resorted to exploit the inherent flaws and lacunas in Article 370. At the same time, the government also overly misused its de facto state apparatus functioning in IOK in the wake of imposition of President’s Rule in the valley since December 2018. At the first step, the Governor of IOK, who was merely an appointee of the Central Government, made recommendations to his own government to render Article 370 inoperative by assuming the position of a lawful government of the State as mandated by the Constitution. Later, the Parliament of India, stepping into the shoe of defunct Constituent Assembly of J&K, also passed a resolution to this effect. And finally, the President of India passed The Constitution (Application to Jammu and Kashmir) Order, 2019 to supersede The Constitution (Application to Jammu and Kashmir) Order, 1954 resulting in abrogating the Constitution of the State of J&K.