CHANGING DYNAMICS ON THE SPECIAL

STATUS OF JAMMU AND KASHMIR

SUBMITTED TO

Mr. Ashutosh Kumar Aahire

(Faculty of Political Thought)

SUBMITED BY
SANKALP PARIHAR
B.A.LLB (Hons.)
SEMESTER-III
SECTION-A
Date of Submission: 08/12/2020

Hidayatullah National Law University

Naya Raipur (C.G) 492002
 DECLARATION

I, Sankalp Parihar, have done research on the topic “Changing dynamics on the special status
of Jammu and Kashmir”. I hereby declare that this Research Project has been prepared only for
academic purposes and is the outcome of the investigation and preparation done by me under the
able guidance and supervision of Mr. Ashutosh Kumar Aahire, Assistant Professor, Political
Thought, Hidayatullah National Law University, Raipur.

…………………………………
SANKALP PARIHAR
ROLL NO. 142
SEMESTER – III SECTION A
 CERTIFICATE

This is to certify that SANKALP PARIHAR, Roll Number 142, student of Semester III,
Section-A of B.A.LL. B (Hons.),Hidayatullah National Law University, New Raipur
(Chhattisgarh) has done the research work on the project titled “Changing dynamics on
the special status of Jammu and Kashmir” under my guidance and supervision. The
research work is fit for evaluation and submission.

…………………………. ………………………………..

Place: Raipur Mr. Ashutosh Kumar Aahire

Date: 08.12.20 Faculty of Political Thought
.
 ACKNOWLEDGEMENT

Working on the project “Changing dynamics of the special status of Jammu and Kashmir”
was a source of immense knowledge, through this I received chance to deeply understand the
change in dynamics relating to the status of Jammu and Kashmir. I would like to express my
gratitude to Mr. Ashutosh Kumar Ahire sir for his guidance and support throughout the course
of this project. I acknowledge with deep sense of gratitude, the encouragement I received
from sir for this project.

………………………

SANKALP PARIHAR
Semester III
Section ‘A’
Roll no. 142
 TABLE OF CONTENTS

S No. Particulars Page No.

1. Declaration of Originality i

2. Certificate ii

3. Acknowledgement iii

4. INTRODUCTION 01

5. INCEPTION OF THE SPECIAL STATUS OF JAMMU AND 02-03

KASHMIR

6. CHANGES IN THE STATUS OF JAMMU AND KASHMIR 04-05

7. THE POLITICAL IMPACT OF INDIA’S REMOVAL OF JAMMU & 06-07

KASHMIR’S SPECIAL STATUS

9. CONCLUSION 08

10. REFERENCES 09
 INTRODUCTION

The state of Jammu and Kashmir has transitioned into two Union Territories of Jammu and
Kashmir and Ladakh, on the birth anniversary of Sardar Vallabhbhai Patel, the freedom
movement leader who persuaded 562 princely states to accede to newly-independent India.
This special status to Jammu and Kashmir was given by the virtue of two articles i.e. Article
370 and 35A. Article 370 of the Constitution of India provides special autonomy to the state of
Jammu & Kashmir (J&K). The former Article 238, pertaining to Part B states or former
princely states was repealed by the 7th Constitutional Amendment in 1956 after the re-
organization of Indian states. However, s Article 370 overrode the provisions of Article 238 as
special stipulations for J&K. Article 370 have been controversial right from inception, as even
the core members of the drafting committee were against giving an special status to J&K as it
was seen as an biased and unequal dispensation within the framework of a free India. This
inception was initially meant to be temporary in nature hence it was included in the Temporary
and Transitional Provisions in Part XXI. Article 370 of the Indian Constitution stipulates
autonomy for the state of Jammu and Kashmir (J&K). Terms of the Article have remained
mired in controversy owing its unequal dispensation within the framework of free India. There
have been various contentions on the validity of Article 370 and the major revolves around:
First, the Genesis of Article 370 spawn inequality in India. Second, its Retention implies
festering of contentious issues. Third, its Ramifications forge inequality within J&K. Fourth,
how Politics over Article 370 only seek limited leverage from it. There have been changes in
the stances of the political parties relating to article 370 such as the current central government
who promised that there would be abrogation of 370 and the promise was made in the year
2013 but owing to various other agendas this was pushed back a little. Article 370 by that time
was rooted deep in India and had various sentimental, religious and political views attached
and abrogation of the said article would require a strong majority in both the houses of the
parliament with a strategy to curb the protests. Article 370 and Article 35A were seen as a
discriminatory in practice as the rest of the states who had this special statues, their special
status was stripped in a phased manner and the contention towards J&K grew overtime as there
was no particular answer to the question of need of article 370 and 35A. 1

1
India, Legislative Assembly of Jammu and Kashmir. (n.d). Constitution of Jammu and Kashmir
from http://jklegislativeasseImbly.nic.in/Costitution_of_J&K.pdf
 INCEPTION OF THE SPECIAL STATUS OF JAMMU AND
KASHMIR

In 1947, Hari Singh, who was the last ruling Maharaja of princely state Jammu and Kashmir,
acceded to India after signing the "Instrument of Accession" on October 26. Hari Singh, who
was the Hindu king of a Muslim-majority state, had initially wanted to stay independent, but
decided to go with India after Pakistani army regulars and tribesmen invaded the state and India
agreed to help if he acceded. As per the "Instrument of Accession", only defense, external
affairs and communications were handed over to the government of India. These conditions
were peculiar to Jammu and Kashmir's accession to India, unlike the other 565 princely states
that had chosen to integrate fully with India. At that time, Sheikh Abdullah, the founder of state
political party National Conference, had supported Jammu and Kashmir's accession to India.
Sheikh Abdullah believed that Kashmiris had a better future in a secular, democratic India
rather than an Islamic state like Pakistan. In 1949, Hari Singh appointed Sheikh Abdullah as
the Prime Minister of Jammu and Kashmir, who in turn joined the Indian Constituent Assembly
to negotiate a special status for the state. This is how Article 370 was born and underlined
Jammu and Kashmir's autonomy within India. By 1953, however, the relationship between
Prime Minister Jawaharlal Nehru and the state government led by Sheikh Abdullah turned sour,
leading to Mr. Abdullah's dismissal and arrest. This detention continued for 20 years and
Sheikh Abdullah was released in the year 1953.2

Over the next few decades, Article 370 was slowly eroded by New Delhi, with more and more
central laws becoming applicable to the state. The next turning point in Jammu and Kashmir's
history was the Indira-Sheikh accord in 1974 between former Indian Prime Minister Indira
Gandhi and Sheikh Abdullah. This accord made Sheikh Abdullah the chief minister of the state
after years of estrangement from mainstream politics. The politics of Jammu and Kashmir since
then has been dominated by the National Conference, the Congress and later Mufti Mohammad
Sayeed's Peoples Democratic Party or PDP.3 The BJP-PDP alliance of 2014 marked another
milestone in Jammu and Kashmir's history. After the BJP pulled out of its coalition government

2
Akbar, M. J. (2002). Clause 7, Article 370 and a Three Nation Theory. In Kashmir: Behind the Vale (First ed.,
pp. 135-137). New Delhi
3
https://www.ndtv.com/india-news/how-article-370-jammu-and-kashmir-was-born-union-territory-formed-
timeline-history-2124748 9 (25-12-20; 11:30 AM)
with the PDP in 2018, the President's rule was applied in the state. But in contrast to the current
situation with the BJP, had it not been for this special status, certain realities may not have
changed even in this case, and the quandaries may have still remained as complex. It would
still be a Hindu Maharaja ruled state with a dominant Muslim population. Post the accession,
the opposition to the imbalance between the two would still have been palpably present; in fact,
possibly more so, given the imposition of a secular, social and democratic order as per the
Indian Constitution. Post-Independence India would still see a churn in terms of its social
outlook, policies, and laws giving some manner of equality to its diverse population, of which
the people of J&K would partake equally. Sheikh Abdullah as a popular leader may not have
changed, but the differences between him and the central government may never have arisen.
Even if they had, the differences may have been of the nature that political differences arose
with leaders such as JP Narayan. Yet the yearning of the people for equality, for development,
for justice, would have existed. It may have resulted in J&K taking a route akin to the other
Indian states of Bihar or Uttar Pradesh or Madhya Pradesh; extant differences in various
regions whether based on identity or religion may have seen the division of the state into
simpler administrative units as has been the case with Jharkhand or Chhattisgarh or
Uttarakhand. Individual states and/or union territories of Jammu, Kashmir and Ladakh being
formed to cater to the aspirations of the distinct people of each of these parts may have sprung
up in due course. Therefore, in its very genesis, Article 370 sought to create unequal terms for
people who were citizens of the same country, living in different regions. This was also a
precursor to the unequal development of people in J&K itself and in comparison, to the rest of
the country. The multiple cause and effect of the Maharaja's bid to safeguard his own
sovereignty, Nehru's bid to invalidate Jinnah's Two Nation Theory, and Sheikh Abdullah's bid
to ascend to power; all of these have only resulted in effecting an unequal playing field and
creating roots for future disharmony4.

4
https://eurasiantimes.com/after-article-370-modi-government-proceeds-with-delimitation-exercise-in-jk/ (27-
11-20; 3:33 PM)
 CHANGES IN THE STATUS OF JAMMU AND KASHMIR

On the birth anniversary of Sardar Vallabhbhai Patel today, the state of Jammu and Kashmir
has formally transitioned into two Union Territories of Jammu and Kashmir and Ladakh. With
this change, India now has 28 states and 9 Union Territories. The process of transition begins
with the swearing-in of the two newly-appointed Lieutenant-Governors in Srinagar and Leh.
Among the first changes, the radio stations in Jammu, Srinagar and Leh have been renamed as
All India Radio, Jammu; All India Radio, Srinagar; and All India Radio Leh. "Jammu and
Kashmir and Ladakh are taking a step towards a new future today," PM Narendra Modi said,
addressing a gathering in Gujarat to mark the 144th birth anniversary of Sardar Vallabhbhai
Patel.

In the year 2019, the decades-old special status to Jammu and Kashmir under Article 370 of
the constitution was removed by an order from President Ram Nath Kovind and the state was
bifurcated into two union territories. The Jammu and Kashmir Reorganisation Act, which
contains provisions to divide the state into two Union Territories, came into effect. The major
changes this act would entail are:5

1. Jammu and Kashmir will have elected legislative assembly and council of ministers
headed by the chief minister for the union territory of Jammu and Kashmir. Ladakh will
not have an Assembly and will be directly governed by the Union Home Ministry
through the Lieutenant-Governor. The Indian Constitution and the Indian laws would
be applicable in the Union Territories.

2. The strength of the Jammu and Kashmir assembly will be increased by seven seats to
114 from the existing 107 seats. While the strength of the council of ministers will be
trimmed to 10 per cent of the total strength of the legislature.

5
Constitution of India, accessed from http://indiacode.nic.in/coiweb/welcome.html (27-11-20; 2:07 AM)
 3. The Union Territory of Jammu and Kashmir will continue to have five MPs in the Lok
Sabha and will have four MPs in the Rajya Sabha. The Union Territory of Ladakh will
have one MP.6

4. Jammu and Kashmir and Ladakh will have a common high court. Panchayat would be
more powerful under the new arrangement.

The abovementioned changes were made by the government to make good on the longstanding
promise of abrogation of the special status of J&K and to integrate India whole as one. This
abrogation is seen negatively as well as positively. The non-supporters of the abrogation argue
that with this the security and the cultural solidarity of J&K is broken but the supporters claim
this as wrong. J&K never had a single religious or cultural majority because where there is a
majority in Muslims in one area such as Kashmir the Hindus dominates the other such as
Jammu and the monasteries with Buddhist being located in the Ladakh region. It has always
been arguing that the special status of Jammu and Kashmir was in favour of the rulers and
representatives of the state but was never for the benefit for the subjects living in the state7.

7
Mattoo, A. (2013, December 6). Understanding Article 370. The Hindu. Dated July 17 2019
http://www.thehindu.com/opinion/lead/understanding-article- 370/article5426473.ec
 THE POLITICAL IMPACT OF INDIA’S REMOVAL OF
JAMMU & KASHMIR’S SPECIAL STATUS

The Jammu and Kashmir Reorganization Act 2019 proposes to bifurcate J&K into two Union
territories (UTs): Jammu & Kashmir and Ladakh. The decision to immediately propose
reorganization after the abrogation of J&K’s special status was possibly taken in anticipation
of violent civilian unrest in the Kashmir Valley. The change to Union Territory status will
likely give New Delhi more control over local administrative and legislative powers in J&K,
in addition to direct control over the police and protection and maintenance of public order.
However, it was assured to the parliament that when the situation returns to normalcy and “the
right time comes,” the central government will once again grant full “state” status to the union
territory of J&K. There are two possible implications of the ruling BJP’s decision to abrogate
Article 370: first, the BJP may gain political mileage from the move, both in J&K and the rest
of India. Secondly, New Delhi may now be able to further emphasize the Kashmir issue as an
“internal” matter of India in response to attempts at third-party mediation. However, the
government understands the risks involved, such as possible civilian unrest and terror attacks
in the Valley, communal tensions in J&K, and the internationalization of the Kashmir issue.8
Even though New Delhi may face challenges in stabilizing the law and order situation in the
Kashmir Valley after this revocation decision, the BJP’s choice to abrogate Article 370 may
possibly give it long-term political mileage across India and a real shot at reshaping the political
status quo in J&K. Moreover, the timing of the decision is also critical. The ruling BJP likely
felt emboldened in taking important domestic political decisions after the historic mandate it
received in the recently concluded parliamentary elections. It was also likely empowered by
the fact that the political opposition remains weak and not unified, as became evident after
some parties supported the government’s decision to revoke J&K’s special status, while the
Indian National Congress (INC) and the Communist parties among others opposed it. Lastly,
the BJP government will have almost five years until the 2024 Lok Sabha elections to bring
political stability to J&K and complete the reorganization process. After scrapping J&K’s
special status, the BJP sees an opportunity to form government in the newly-declared Union
Territory of J&K. The government intends to undertake delimitation of the J&K legislative
assembly constituencies in order to conduct local elections once the law and order situation

8
https://southasianvoices.org/understanding (impact of removal of special status) (26-11-20; 3:37 AM)
normalizes in the Kashmir Valley. The proposed delimitation will redraw the scope and size of
constituencies and determine the total number of seats to be reserved for the Scheduled Castes,
those who belong at the bottom of the Indian caste system, in J&K. The new constituencies
map in J&K may give some electoral advantage to the ruling BJP as it is possible that its
stronghold Jammu may obtain more seats after the delimitation process is complete. If that
happens, the BJP will have a realistic chance to form the new government in J&K and appoint
its own chief minister.
 CONCLUSION

The provision empowering the State with ‘special’ status has always been the elephant in the
room. Jammu & Kashmir has, along with its sensitive topography, appears like a foreign policy
issue, instead of a domestic one due to its status in our Constitution. There exists an unnecessary
chasm between citizens of Kashmir and the rest of India. It borders on being trite, but
nonetheless, sadly, must be reiterated – Article 370 and Article 35-A must go. Article 370
details the relationship Kashmir will share with the rest of the country; Article 35-A grants
permanent residents of Kashmir some special rights. From the get-go, the Constitutional
relationship of India with this state has been adversely lopsided. India has already ensured the
states with the Mizos and the Naga population with constitutional safeguards, special
provisions such as protecting their social practices India has an assortment of examples where
it has performed positive discrimination for groups and states. Article 370 was envisaged as
an instrument for a vulnerable populace, unsure of protection of their identity and culture. In
the same instance it was meant to assure autonomy to create space in governance and empower
people to decide their future. As can be seen from the arguments above, this delegation of
power has remained mired in the clutches of only a few. The very basis of the autonomy granted
is challenged due to the lack of accountability in public life. In the larger context of India,
whether it is the refugees from Poonch, Mirpur and Muzaffarabad, or the case of Kashmiri
Pandits in exile, the state has failed to provide a mechanism for redress xx (Asian Centre for
Human Rights n.d; Economic Times 2016). The extreme case of discrimination cannot be
justified in terms of any reasoning offered by Article 370 or those who advocate it. Instead of
empowering the people to decide their own future and fate, the article risks this very underlying
reason for its incorporation in the first place, and has been abused without any qualms xxi
(Asian Centre for Human Rights n.d). Therefore, the argument that it is the erosion of Article
370 and not its creation that is helping separatism bloom stands without merit. It is these factors
which make a strong case for revocation of Article 370 to be taken at the highest levels without
further delay and discord9

9
Hoskote and Hoskote Special Issue Volume 3 Issue 1, pp. 813 -835 Date of Publication: 04th May, 2017
 REFERENCES

1. India, Legislative Assembly of Jammu and Kashmir. (n.d). Constitution of Jammu and

Kashmir from http://jklegislativeasseImbly.nic.in/Costitution_of_J&K.pdf

2. Akbar, M. J. (2002). Clause 7, Article 370 and a Three Nation Theory. In Kashmir:

Behind the Vale (First ed., pp. 135-137). New Delhi

3. https://www.ndtv.com/india-news/how-article-370-jammu-and-kashmir-was-born-

union-territory-formed-timeline-history-2124748 9 (25-12-20; 11:30 AM)

4. https://eurasiantimes.com/after-article-370-modi-government-proceeds-with-

delimitation-exercise-in-jk/ (27-11-20; 3:33 PM)

5. Constitution of India, accessed from http://indiacode.nic.in/coiweb/welcome.html (27-

11-20; 2:07 AM)

6. Mattoo, A. (2013, December 6). Understanding Article 370. The Hindu. Dated July 17

http://www.thehindu.com/opinion/lead/understanding-article- 370/article5426473.ec

7. Hoskote and Hoskote Special Issue Volume 3 Issue 1, pp. 813 -835 Date of Publication:

04th May, 2017