Daily Times

Since the beginning of 2019, history has been witnessing certain developments unheard of before. On 14 February 2019, in the Pulwama district of the State of Jammu and Kashmir, a suicide bomber slammed his explosive-laden vehicle into a military convoy on the Jammu Srinagar National Highway. The incident consumed the lives of 40 personnel of Central Reserve Police Force. A militant organisation Jaish-e Mohammad claimed responsibility for the attack. Hence, India was quick to blame Pakistan for letting the Jaish survive on its land and for facilitating the Jaish to attack the Indian army deployed in Kashmir.

In response, on 26 February 2019, the Indian airplanes crossed the Line of Control (LoC), entered the mainland Pakistan and dropped bombs on an uninhabited area at the Jaba hilltop site near Balakot alleging that the area was letting the Jaish-e Mohammad to run a training camp to launch attacks against the Indian forces in Kashmir. India declared the act a pre-emptive strike directed against a terrorist training camp in Pakistan. The strike omened bad, as this was the first time Indian planes committed such a heinous act against Pakistan. In retaliation, on February 27, Pakistan’s planes crossed the LoC, dropped their payload, and on their return shot down two Indian planes chasing them to Pakistan. An Indian pilot Wing Commander Abhinandan Varthaman was taken prisoner who was returned on March 1.

Against the background of raising bilateral temperature, the real intent of India to drop bombs on the mainland of Pakistan unfolded later on when the episode played a significant role in letting the Bharatiya Janata Party (BJP) led by Narendra Modi win the general elections held from April to May 2019. Once again, it became known that the BJP thrived on stirring anti-Muslim and anti-Pakistan feelings amongst the Indians to woo voters to win elections.

The question is whether or not, through a Presidential Order, the Indian President was empowered to revoke Article 370. The answer is in the negative

The rise of the BJP in India remained dependent on the exploitation of right-wing Hindu sentiment to reconstruct Akhand Bharat – the Vedic concept expressing the Hindu cultural sphere. In 2014, the BJP pledged its supporters that it would revoke the special status of Kashmir and would make it merge fully with the Indian Union. On 20 June 2018, the BJP had maneouvred to fall the government of Mehbooba Mufti (Chief Minister of Kashmir) who was leading the People’s Democratic Party (PDP) in coalition with the BJP for three years. The fall of the PDP-led government actuated the imposition of the governor’s rule. The PDP believed in the ideology of self-rule and not autonomy, the concept espoused by the National Conference led by Farooq Abdullah. In 2019, the BJP got a comfortable majority of 303 seats out of 545 seats in the lower house of the Indian Parliament called (Lok Sabha).

Between Kashmir and the Indian Union, Article 370 of the Indian Constitution had acted as a corridor. Article 370 was a custodian of the internal autonomy of Kashmir and it permitted Kashmir to have its own constitution, law, flag, human and property rights and freedom. India was to supervise foreign affairs, defence and communications, permissible under the Instrument of Accession that made the Kashmir’s accession to India possible on 27 October 1947.

On 5 August 2019, under clause (1) of Article 370 of the Indian Constitution, Indian President Ram Nath Kovind issued the Presidential Order of 2019 in concurrence with the Governor of the State of Jammu and Kashmir, as the Kashmir legislative assembly was absent. The Order superseded the Presidential Order of 1954, which had been amended several times since 1957. With the revocation of Article 370, the special status of Kashmir stood dissolved and it merged into the Indian Union.

Along with Article 370, the Indian President also scrapped Article 35-A that had barred any non-Kashmiri from purchasing property and claiming for the Kashmiri nationality. Revoking Article 35-A was bound to change the demographic realities on the ground when non-Kashmiris would buy land and earn nationality/domicile of the State.

On 5 August 2019, the upper house of the Indian Parliament (Rajya Sabha) passed a bill and next day the lower house of the Indian Parliament (Lok Sabha) also passed the bill which, on 9 August 2019, got the President’s assent to become an Act called the Jammu and Kashmir Re-organisation Act of 2019. On 31 October, the Act dissolved the State and divided it into two union territories run by the Centre. One union territory consisted of the Kashmir Valley (which was a Muslim-majority area) and Jammu (which was a Hindu-majority area). This territory would have its own legislature. The second territory was inhabited by the Buddhists consisted of Ladakh present closer to Tibet culturally. This territory would be without a legislature.

The Indian President not only revoked Article 370 of the Indian Constitution but he also divided the State of Jammu and Kashmir into two administrative units called union territories. Now, Kashmir will have to abide by the Indian Constitution fully as other former princely states do. The ruse is that the Indian government want to develop the area to level economic opportunities for all. To meet this objective, India has to make conditions that conduce to social and economic uplift of Kashmir especially by opening space for non-Kashmiris to stay and invest in Kashmir. Besides doing all these things, India sent more troops to Kashmir, arrested politicians, disconnected telecommunication, and imposed a curfew.

The question is whether or not, through a Presidential Order, the Indian President was empowered to revoke Article 370. The answer is in the negative. The reasons are three. First, the President extended all the provisions of the Indian Constitution to the State. As per the limits described under Article 370, the President could not do so. Second, the President modified Article 367 of the Indian Constitution by adding to it sub-clause (4) (d) to make it applicable to Kashmir selectively. It was an attempt to rejuvenate the redundant part of Article 370 that had been rendered non-functional by the Kashmir’s Constituent Assembly in 1957. Article 367 is an interpretative article, which cannot reinterpret any defunct part of Article 370 gone redundant earlier. Third, the presidential order itself is not credible unless supported by a constitutional amendment passed by the Indian Parliament. Hence, the lockdown that India has imposed is both temporary and unconstitutional.

Dr Tehmina Aslam Ranjha is an Assistant Professor at School of Intergrated Social Sciences at University of Lahore and Research Fellow at UoL Center for Security, Strategy and Policy Research.Currently,She is SDPI’s grantee for a mega project on Countering Violent Extremism. She regularly appears on BBC Urdu as an expert on National Security and Counter-Terrorism