Decoding Article 370 (3) and 35A
Kashmir, a nuclear flashpoint between two nuclear-armed rival neighbors spurred on August 5 when Prime Minister Modi revoked two articles in the Indian constitution to pursue his Hindutva ideology and fulfill his long-awaited political manifesto. Section 3 of article 370 grants special status to Jammu and Kashmir while article 35A is the extension or explanation of the rights of Kashmiris conferred under article 370 (3).
The historical origin of the special status of Jammu and Kashmir resides in the so-called accession treaty of Maharaja Harri Singh. While signing the agreement, the Maharaja conditioned the accession of Jammu and Kashmir (J&K) with the special status. The then leader of India, Mr Jawaharlal Nehru assured him about the special status of J&K. He further agreed that on the settlement of partition issues, a referendum or plebiscite would be held in J&K to know the will of the people and then the permanent status of Kashmir would be decided accordingly.
The Indo-Pakistan war of 1949 went in favor of Pakistan. This led the Indian government to move the matter of Kashmir to the United Nations Security Council (UNSC) platform. As India was unilateral in its move of bringing Kashmir to the UNSC table, a resolution regarding Kashmir was passed under Chapter 6 (non-binding in nature) of UN charter. This resolution stated three steps in resolving the Kashmir issue peacefully. These include ceasefire among the parties to the conflict, complete withdrawal of Pakistani forces while the partial withdrawal of Indian troops and the remaining Indian troops would perform the policing functions in the valley, and in the last the referendum to know the will of the people who are the real stakeholders in Kashmir. The ceasefire did happen but unfortunately, the withdrawal never happened. As the process was step-wise, so the referendum also never happened. Later on, Kashmir was given special status in the Indian constitution via the presidential ordinance of 1949 and 1954. After 1971 war, the Simla agreement was done 1972 to formally end the war, which resulted in the formation of the Line of Control (LoC). Additionally, both countries pledged to resolve all issues between then bilaterally.
Now, whenever Pakistan raises the Kashmir issue globally, the Indian government simply neutralizes every Pakistani effort by saying that Kashmir is its internal matter and both the countries have agreed to solve their problems bilaterally. But, this is not the actual case. Geographically, Kashmir is a trilateral issue as China is also claiming the parts of Indian occupied Kashmir (IoK). If we see in the perspective of the UN resolution, it states that Kashmir is an international issue. And lastly, in view of the Simla agreement, it is a bilateral issue.
Coming toward the constitutional and administrative procedure adopted by the Indian government to revoke the special status of Kashmir, there are numerous views about the legality of the procedure.
According to view 1, the process of revocation of the special status article can only be initiated by the Kashmir assembly. As there is no elected assembly in Kashmir currently, therefore the federal government or the central legislative assembly cannot initiate the process on its own. Therefore, the steps taken by the Modi government to revoke the status quo in Kashmir is illegal. Adding to this debate is the decision of Jammu and Kashmir High Court in 2016 in which the Court stated that the special status to Kashmir was granted by the constitutional assembly, therefore it can only be rolled back by the same constitutional assembly. And, as of now the then constitutional assembly was resolved in 1957, so the special status of Kashmir is permanent and cannot be revoked.
The other view sees the move of the Indian government as constitutional. It states that as the special status was granted by two presidential orders of 1949 and 1954 which were then endorsed by both the houses of the parliament by 2/3rd majority, therefore the same procedure can be applied to revoke this status. A critical analysis suggests that this path can be a constitutionally legal if the Kashmir assembly would have advised the president to make the changes in the constitution. But here, it was governor who advised the president and not the Kashmir assembly. As governor is the representative of the federal government and does not necessarily represent the will of the people, therefore the president cannot alter the constitutional status of Kashmir on the advice of the governor.
After debating all the legal options, it can be clearly stated that the move of the Indian government was politically motivated and in fact represents the fascist policies of Mr Modi, who consider himself more of a member of Hindutva and not a leader of India. Hindutva is a religious ideology of Hindu extremists that they are the superior and chosen people of God. According to them, Hindus are the original natives of the Sub-Continent and Muslims are invaders. Moreover, they believe that India is for Hindus and not for Indians, therefore it is Hindustan and not India.
The International Court of Justice (ICJ) in its press release has shown its regret on the Indian government’s illegal move to strip Kashmiris off their identity and rights and stated that this decision is ‘’a blow to the rule of law and human rights in the state and in India’’. It has further mentioned that all eyes are on Indian Supreme Court to fulfill its function of defense of the Indian constitution and the rights of the people of Jammu and Kashmir.