Source: India Today
In the second week of August 2019, the Union Government effected a landmark decision using Constitutional Orders 272 and 273 to effectively abrogate all provisions of Article 370 of the Indian Constitution. Article 370 gave Jammu and Kashmir special status and exempted it from almost all provisions of the Indian Constitution. It marked a watershed moment in Indian polity. The abrogation of Article 370 stands as one of the boldest and most consequential moves made by the Bharatiya Janata Party under the leadership of Prime Minister Narendra Modi. [20] [21]
Background
At the time of Independence, princely states were given the option to join what was then called the Dominion of India or the Islamic Republic of Pakistan. Alternatively, the princely states could choose to remain independent as well. The princely state of Jammu and Kashmir had a Hindu ruler but a Muslim majority population. Maharaja Hari Singh, the ruler of Jammu and Kashmir, initially wanted to be independent and pursued that option. Eventually, intrusions by tribal militias supported by Pakistan prompted the Maharaja to sign the Instrument of Accession(IOA) with India to defend his territory from a hostile takeover. To maintain the sovereignty of Kashmir at the time this IOA prevented most parts of the Indian constitution from applying to Kashmir.
When the Constitution of India was being drafted all former princely states were given the option to have their own constitution and constituent assemblies with the power to draft their constitution. Most states decided not to exercise this provision. However, Kashmir formed a constituent assembly to frame a separate constitution for Kashmir. The princely state also requested the Government of India that only those provisions of the Indian Constitution should be applied to the state as corresponding to the original Instrument of Accession, and that the state's constituent assembly would decide on the other matters. The Indian government agreed and Article 370 was incorporated into the Indian Constitution. Article 370 was intended as a temporary provision for the state’s constituent assembly.
Source: Kreately
However, over the decades some of the provisions of Article 370 were watered down by successive governments and certain national laws started applying to Kashmir[29]. In 2010, the National Human Rights Commission (NHRC) overruled Jammu and Kashmir's claim to immunity under Article 370, asserting its jurisdiction in a custodial death case. The NHRC concluded that recommendations on police torture and custodial deaths do not interfere with state legislation, thereby setting aside J&K's contention that NHRC lacked authority in such matters due to the state's special status[30].
Over time there were growing calls for the complete abrogation of Article 370 instead of half measures in the past to make selective national laws applicable to the erstwhile Jammu and Kashmir, which while not widespread were neither insignificant nor could be ignored.
The Bharatiya Janata Party initially promised the abrogation of Article 370 in its manifesto ahead of the 2014 election. However, rulings from the Supreme Court of India indicating that Article 370 had taken a permanent nature seemed to close the door on this issue[1]. Or at least that was until the BJP and Narendra Modi returned to power in 2019 on the backs of a sweeping majority in the Lok Sabha polls.
Using two presidential orders and a reorganisation bill, introduced by the Home Minister Amit Shah in parliament all provisions of Article 370 were made void. The state was to be divided into two Union Territories, Jammu & Kashmir and Ladakh. In the days preceding this, there was a significant government and military clampdown in the entire region including an almost absolute communication blackout which the government justified in the name of maintaining peace and order.[22]
External Impacts
One of the earliest and most aggressive responses came from China and Pakistan as they saw the action as a hindrance to their interests in the regions of Ladakh and Kashmir respectively. They strongly condemned the actions of the Indian government.[23][24] Indian diplomacy prevailed in the long run as most countries agreed to either the fact that this was India’s internal matter or that this would be a purely bilateral matter. China and Pakistan’s attempts to raise this issue in international forums such as the United Nations Security Council were in vain[2].
The only two problems raised by major nations were the protection of human rights in Kashmir, including the right to free and fair elections, and the avoidance of a potential escalation of tensions between India and Pakistan. The messaging of global leaders about it being a ‘bilateral issue’ was a significant change from the years past when the international forum treated it as an issue which required foreign intervention. In the immediate aftermath, the Labour Party of the United Kingdom passed an emergency motion on the situation in Kashmir at its annual conference in September 2019[3]. However, the stance has changed significantly since then[4].
Internal Impacts and Reactions
In India, this was an issue which largely divided political parties. The ruling party and its allies supported the decision in the name of closer integration of Kashmir with India, helping end violence and militancy in the state and enabling people to access government schemes such as reservation, right to education and right to information among other schemes[25]. A significant number of opposition parties, who were not directly allied with the ruling party supported the decision, many opposition parties and Kashmiri parties were opposed to this decision. They argued that abrogation of Article 370 would lead to a loss of Kashmir’s identity. Furthermore, many opposition leaders criticised the Union government for mass detentions and communication blackouts.[26]
Leh initially rejoiced at the idea of Ladakh being a separate union territory. However, the residents of Kargil were less than thrilled as they preferred to be a part of Jammu and Kashmir itself.[5] However this also eventually changed over time, especially in recent times with protests in Leh regarding the finer details and full extent of what the abrogation of Article 370 would mean for them.
All of this culminated in a flurry of petitions in the Supreme Court challenging the constitutional validity of the abrogation of Article 370. The Supreme Court gave its verdict on 11th December, 2023. The Supreme Court of India, led by Chief Justice D.Y. Chandrachud, confirmed the constitutional legality of Presidential Orders CO 272 and 273, which extended the entire Indian Constitution to Jammu and Kashmir and rendered Article 370 ineffective. The court addressed four important issues: Jammu and Kashmir's sovereignty, the temporary nature of Article 370, the legitimacy of its repeal, and activities committed during the President's administration. The court ruled that Jammu and Kashmir's constitutional structure and designation as a Part III state demonstrated no residual sovereignty. Both CJI Chandrachud and Justice S.K. Kaul agreed that Article 370 was only transitory and could be repealed without the approval of the state Constituent Assembly and that the government's 2019 procedure was valid.[6]
Source: The Print
Economic and Social Impacts
One of the main planks on which the abrogation of Article 370 was based was increasing economic opportunities for the people of Jammu and Kashmir. Earlier a significant hindrance was that only the Indigenous people in the state could buy land in Jammu and Kashmir due to Article 35A which was introduced in Constitutional Order 48(1954)[27]. It allowed the state legislature to determine who was a "permanent resident" and grant them exclusive rights over government jobs, government aid/scholarships, ownership, and the right to settle in the state[28].
While seemingly harmless, there was a significant disadvantage. No private business in India could buy land needed to set up offices or workplaces where people would be employed. To put things into perspective one can imagine that a company like Tata, one of the major employers across India in multiple different disciplines would in the past not be allowed to employ people in Kashmir as it wouldn’t even be able to procure land to set up an office or factory in J&K.
After recovering from the economic damage caused by the COVID-19 pandemic, the abrogation of Article 370 has finally started to bear fruits as the Union Territory (UT) of Jammu and Kashmir is witnessing its highest-ever industrial investments in the last few years.[7] It has been supported by the restoration of administrative control. Before the abrogation of Article 370, not only businesses, but the education sector in Kashmir suffered immensely due to frequent strikes, stone-pelting incidents and violence in Kashmir.[8]
Additionally, the government has focused on improving the ease of doing business. According to official estimates, J&K realised investments totalling Rs 2153.45 crore in FY 2022-23, the most of any fiscal year in the recent decade. [10] The labour participation in Jammu and Kashmir grew by nearly six percentage points between 2019-’20 and 2021-’22.[11]
Source: India Today
Due to improved safety and stability in the region following the abrogation of Article 370, tourism has reached new heights. In 2022, Jammu and Kashmir received 1.88 crore tourists. Hosting key events, such as the G20 Tourism Working Group meeting helped the region get international recognition as a tourist destination[12]. There was a remarkable 155% increase in overall tourist arrivals in 2023 compared to the previous years of 2021 and 2022.[13]
Source: Mint
The most major shift noticed in Ladakh is the opening of the region to Indian visitors, which was previously denied. The Indian Army has played a larger role in implementing these measures. The Indian Army has created dual-use roads and bridges, encouraged the development of schools, and laid the telecommunications network. The Indian Army is carrying out several other measures to improve the operational capabilities of forces deployed in harsh high-altitude rugged terrain and expand the infrastructure dimensions of advanced regions in Ladakh. Significantly, the push for operational infrastructure in Ladakh has arrived in the last several years in a large way[14]. The people of Ladakh have benefitted from the various changes brought by the Indian Army and UT administration.
Recent Developments and Challenges
An interesting development happened in the 2024 General Elections, with Jammu & Kashmir having the highest-ever voter turnout[15]. However different sides have different interpretations of this anomaly. The BJP said that the high voter turnout demonstrated that J&K had moved on to a post-Article 370 age, while the Valley parties labelled it a vote against the Center and claimed that people had seized the first chance to voice their opinions.[16]
In surveys conducted before elections, the voters voiced concern about "changed demographics" and the loss of J&K's "identity". The key difficulties in Jammu, where there is stronger support for the Centre's unilateral decision on Article 370, were the unfulfilled promises of jobs and the inaccessibility of the existing BJP MPs. The key electoral theme in Ladakh was also the changes that occurred when Article 370 was removed, with voters preferring the autonomy provided by the Sixth Schedule of the Constitution.[17]
In Leh, the people initially celebrated the abrogation of Article 370, later the sentiment changed when it became clear that, in addition to Article 370, critical protections for property ownership, employment, and identity had been revoked. That spurred the Leh Apex Body (LAB), a combination of political, social, and religious entities in Leh, to come together with the Kargil Democratic Alliance (KDA) and petition the Union government for changes. [31]
Reformist Sonam Wangchuk, along with the Leh Apex Body (LAB) and Kargil Democratic Alliance (KDA), is leading a hunger strike demanding statehood for Ladakh, inclusion in the Sixth Schedule of the Indian Constitution, and separate Lok Sabha seats for Leh and Kargil. Since Ladakh's reorganisation as a Union Territory (UT) in 2019, it has lacked a legislature and has been governed by a Lieutenant Governor. This has led to dissatisfaction as local leaders argue that key decisions affecting Ladakh's future are made by non-residents and that local governance structures, like the Ladakh Autonomous Hill Development Councils (LAHDCs), have been rendered powerless.[18]
Source: Telegraph India
Resource management and environmental concerns have arisen due to the rapid influx of tourists. Ladakh faces severe pressure on its resources due to rapid urbanisation and a high influx of tourists. The region's water resources are particularly strained, with tourists consuming more water than locals, leading to increased reliance on contaminated underground sources. The high tourist footfall exacerbates these pressures, especially during peak seasons. Additionally, mining and renewable energy projects, alongside tourism, contribute to environmental degradation and exacerbate the effects of climate change.[19]
Conclusion
The abrogation of Article 370 has set the regions now called the Union territories of Jammu and Kashmir, and Ladakh on a new path. It has turned the dynamics of the Kashmir issue on its head and a much more favourable situation than it used to be. The measures taken by the Union government have set the region on the right path but issues persist. The Narendra Modi government deserves its laurels for the changes it has made in Kashmir but it must continue to do so lest their previous efforts be in vain.
Article by:
Ishaan Bhattacharjee
Vice President
PES MUN Society
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