Its been a year since the abrogation of Article 370 and 35A and the administration re-organisation of Jammu & Kashmir and the sentiments from the valley is mixed. Both soothsayers and doomsday predictions have failed to completely understand the undercurrents of the valley and overall emotions. The premise on which the discussions on merits & demerits are multifold such as development, infrastructure, grassroots democracy, anti-corruption measures, tourism, creation of jobs, relative freedom, quality of life and perhaps a few more. Nominal autonomy whatever it was before Aug 5th 2019, was lost since and the new ecosystem evolved so far has not given any indications to which direction the course will take place due to the year-long restrictions in communication and heavy military presence still continuing.

What is Article 370 and 35A?

Article 370 of the Indian constitution gave special status to Jammu and Kashmir, conferring it with the power to have a separate constitution, a state flag and autonomy over the internal administration of the state. The article was drafted in Part XXI of the Constitution titled "Temporary, Transitional and Special Provisions". The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished. Since then the article was deemed to have become a permanent feature of the Indian Constitution. 

This article, along with Article 35A, defined that the Jammu and Kashmir state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu & Kashmir.

Article 370 embodied six special provisions for Jammu and Kashmir:

    1. It exempted the State from the complete applicability of the Constitution of India. The State was conferred with the power to have its own Constitution.

    2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.

    3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.

    4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.

    5. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.

    6. Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.

Article 35A empowers the Jammu and Kashmir state's legislature to define "permanent residents" of the state and provide special rights and privileges to those permanent residents. These privileges were defined to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these 'privileges'.

Kashmir and its accession to India

Kashmir is an ethnically diverse Himalayan region, covering around 86,000 sq miles (138 sq km), and famed for the beauty of its lakes, meadows and snow-capped mountains. Under the partition plan provided by the Indian Independence Act, Kashmir was free to accede to either India or Pakistan. The maharaja (local ruler), Hari Singh, initially wanted Kashmir to become independent - but in October 1947 chose to join India, in return for its help against an invasion of tribesmen from Pakistan. 

The Indian Independence Act, 1947, divided British India, i.e., the territories under the direct administration of the British, into India and Pakistan. The 580-odd princely states that had signed subsidiary alliances with the British had their sovereignty restored to them, and were given the options of remaining independent, joining the Dominion of India, or joining the Dominion of Pakistan. The Act said joining either India or Pakistan would have to be through an Instrument of Accession based on specific terms and conditions. Technically, therefore, the Instrument of Accession was like a treaty between two sovereign countries that had decided to work together. "Agreement or compact between states” has become an essential characteristic of federalism. Article 370 was an essential facet of India’s federalism because, it governed the relationship of the Union with Jammu and Kashmir. Scrapping of 370 is like dishonouring the constitutional pact that India signed with Maharaja Hari Singh.

The state of Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore eventually to accept the Constitution of India as their own constitution. However the Constituent Assembly of J&K requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State and that the state's constituent assembly, would decide on the other matters. This was accepted by the Government of India.

Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article was considered to have become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.

Changes on the ground post-abrogation

Just before the announcement of the Presidential order on Jammu & Kashmir, there was unprecedented military deployment on the street, political leaders were detained at their homes, communication links were stopped. Actually the central government was expecting mass protests and hence the steps to curb them down. Tangibly nothing has changed since the region is an integral part of India as per Article 3. Article 370 merely gave some autonomy to J&K which now has been withdrawn.

Even after a year the region is still without high-speed internet. About 7000 people were arrested that included nearly the entire mainstream political leadership. One thing which got affected the most is tourism and so as the job opportunities for huge section of population. 

Supporters vs Critics

Supporters of the abrogation of Art 370 have termed the decision as bold and pathbreaking which has caught offguard the proponents of "Azadi" whose concept of Azadi was based upon the notion that J&K was different from the rest of India, being a Muslim majority state and historically not aligned with the mainland. Both Articles 370 and 35A contributed to the creation of this sentiment of exclusivity which were fully exploited by anti-national elements and Pakistan. Entire narrative of Jammu & Kashmir was influenced by the dominant Kashmiri sub-nationalism. Whereas regions like Jammu division were bereft of many benefits enjoyed by the rest of the country. Separatism and terrorism outclassed any talks on welfare or development of the state. Thus scrapping of these Articles have uprooted the sought-after justification for an autonomy. Infact the ruling party claims it to be as "rectifying a historic blunder".

In the neighbourhood, India's decisiveness is emerging as India's strategic confidence resulting in intensifying of collusion between China and Islamabad and thus the current border tension.

Also its been felt that when conditions improve in the domain of physical security, automatically freedoms will progressively restore and people will have more to aspire for. Time will pave the way for the flow of material benefits mitigating the anger and frustration of the locals towards more economic security.

Critics meanwhile, argue that the Article 370 could only be modified with the agreement of the "state government". But there hasn't been much of a state government in Jammu and Kashmir for over a year now. Hence the presidential order can be challenged in the Supreme Court on the ground that the conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred by the President to the state Assembly. Also, can the Constituent Assembly mean Legislative Assembly? Are the Governor and the state government one and same?

Its been also felt that the repeal of Article 370 can be a trigger for a fresh cycle of violence. "According to an AFP report, one district magistrate said that at least 4,000 people had recently been arrested and booked under the Public Safety Act, which allows government to detain any person above the age of 16 without a trial for two years.” Such arrests have largely kept the violence down but has only intensified the separatists sentiments with a renewed justification.

There is also a fear that the repeal would lead to demographic changes there along the same line as the Han Chinese in Tibet. As a result the Kashmiri and Jammu muslims would become more vulnerable and can be classed as anti-India or pro-Pakistan.

Beside massive unemployment is also matter of worry which might prompt more teenagers towards militancy. 

Not only these, such a move by Indian Government has egged on Pakistan to draft a new political map showing parts of Indian territory as their own. Chinese taking a cue, are already on a confrontation path with Indian troops at the Galwan Valley & Pangong Lake. China's gross human right violation in the treatment meted out to Uighur muslims is under the carpet now. Even Nepal has also become belligerent enough to poke by publishing a political map not in sync with India. Basically, the repeal has added fuel to the fire and our borders have become a flashpoint.

Conclusion

Overall the abrogation of Article 370, the bifurcation of the state, a downgrade to a union territory, domicile law changes, delimitation of constituencies, notifying “strategic areas” for use by the army, a six-month political logjam followed by a pandemic lockdown, and a connectivity embargo has fanned much anger among the Kashmiris and whose silence shouldn't be ignored. If the benefits of good governance reaches to the population and the voice of the people are heard and attended to, there is a renewed chance of J&K to get engaged in mainstream politics and a healthy democracy, paving the way for a complete mental integration with the mainland.

(The author is a trainer for Civil Services aspirants. The views expressed here are personal.)