The Supreme Court on December 11, 2023, upheld the Modi government’s historic decision to abrogate Article 370, which granted special status to the erstwhile state of Jammu and Kashmir. Chief Justice of India DY Chandrachud, writing the judgement for himself and Justices Gavai and Surya Kant, said Article 370 of the Constitution was a temporary provision and the President has the power to revoke it.
The SC ruling is a massive boost for Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP) ahead of the 2024 Lok Sabha elections. The apex court was hearing petitions challenging a series of legislative and executive orders to scrap the special status of the erstwhile state of Jammu and Kashmir and split it into Union Territories, including Ladakh.
CJI Chandrachud reading out the judgement said every decision taken by the Centre on behalf of a state under proclamation can’t be subject to a legal challenge as it will lead to the administration coming to a standstill.
The top court said it has held that Article 370 was a temporary provision. “The proclamation of Maharaja stated that the Constitution of India will supersede. With this, the para of Instrument of Accession ceases to exist… Article 370 was an interim arrangement due to war conditions in the State. Textual reading also indicates that Article 370 is a temporary provision,” the court said.
The court also mentioned that the argument of petitioners that the Union government cannot take actions of irreversible consequences in the state during presidential rule is not acceptable. “We have held that the state of Jammu and Kashmir did not retain an element of sovereignty when it joined the Union of India. We have arrived at this conclusion for the following reasons. First paragraph eight of the instrument of accession executed by Maharaja Hari Singh provided that nothing in the instrument would affect the continuance of the sovereignty of the Maharaja in and over the state,” CJI Chandrachud said.
The CJI further noted that on November 25, 1949, a proclamation was issued for the state of Jammu and Kashmir by Yuvraj Karan Singh. “The declaration on this proclamation, that the Constitution of India would not only supersede all other constitutional provisions in the state, which were inconsistent with it, but also abrogate them, achieves what could have been attained by an agreement of merger. With the issuance of the proclamation, paragraphs of the instrument of accession ceases to be of legal consequence. The proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir through its sovereign ruler to India,” the CJI added.
The SC said, “The declaration issued by the President exercises the power and clause 3 of Article 370 is a culmination of the process of integration. Thus, we do not find that the President’s exercise of power under Clause 3 of Article 370 was mala fide. We hold the exercise of Presidential Power to be valid.”
The court also noted that Article 370 was meant for the Constitutional integration of Jammu and Kashmir with the Union and it was not for disintegration and the President can declare that Article 370 ceases to exist.
“Concurrence of the state government was not required to apply all provisions of the Constitution using Article 370(1)(d). So, the President of India taking the concurrence of the Union government was not mala fide,” the court noted.
Clearly, the SC verdict is a huge endorsement of PM Modi and his Kashmir policy. Post the abrogation, 800 central laws became applicable in Jammu and Kashmir, 205 erstwhile state laws were abolished and 130 modified. Some of the outdated laws that were removed are the Land Acquisition (Mines) Act, 1885, the Telegraph Wires (Unlawful Possession) Act, 1950, the Land Tenancy Act of 1980 and the notorious LAAR Act of 2013, among many others.
“In exercise of the powers conferred by clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from 6th August, 2019, all clauses of the said Article 370 shall cease to be operative,” an official notification said in 2019.
On the socio-political front, the historic step of abrogating Article 370 which came into effect in 1950 and Article 35 A, which came into effect in 1954, will always figure very high on the list of achievements of the Modi government.
Then President Ram Nath Kovind, in 2019, declared abrogation of the provisions of Article 370 of the Constitution, which gave special status to Jammu and Kashmir. The move came after both houses of Parliament passed a resolution in this regard. This meant the separate Constitution of Jammu and Kashmir ceased to be in operation and the Union government got the power to redraw the map of the erstwhile state, which thereafter became a Union Territory.
The UT of Jammu-Kashmir got a new status comparable with that of Delhi and Puducherry (the only two other Union Territories (UTs) to have legislatures of their own). And, the Governor of Jammu and Kashmir became Lieutenant Governor.
Background
Article 370, mentioned in ‘temporary provisions’ granted special, autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, Jammu & Kashmir had been accorded special status. All the provisions of the Constitution which were applicable to other states were not applicable to J&K.
According to this Article, except for defence, foreign affairs, finance and communications, the Parliament needed the J&K government’s concurrence for applying all other Indian laws. Thus J&K’s residents lived under a separate set of laws, including those related to citizenship, ownership of property and fundamental rights, as compared to other Indians, elsewhere in the country. As a result of this provision, Indian citizens from other States could not even purchase land or property in Jammu & Kashmir.
However, after Kashmir’s special status gone, vide a Presidential order in 2019, following a historic decision on the floor of the Parliament on August 5, 2019, people from anywhere in India can now buy property and permanently settle in the state. A separate UT was created for Jammu & Kashmir and the Ladakh region was also given the status of a UT, albeit without a legislature. In a masterstroke, the Modi government, by revoking Article 370 and Article 35 A, mainstreamed Jammu, Kashmir and Ladakh, with the rest of India, as Article 370 was always discriminatory in more ways than one.
Development
The Modi government, on January 7, 2020, approved an industrial development scheme worth Rs 28,400 crore, for the UT of Jammu and Kashmir, to give a fresh thrust on job creation, skill development and attracting new investment. Its outlay is until 2037. Smaller units with an investment in plant and machinery up to Rs 50 crore are entitled to a capital incentive up to Rs 7.5 crore and get capital interest subvention at the rate of 6 per cent, for a maximum of seven years. What makes the scheme unique is the GST-linked incentive that ensures less compliance burden without compromising on transparency.
After the abrogation of Article 370, various public outreach programmes were undertaken. For decades, the Abdullahs and Muftis treated this region as their personal fiefdom. The fact that in the 2020 District Development Council (DDC) elections, the BJP emerged as the single largest standalone party, winning 75 seats and making inroads into hitherto impregnable areas like Srinagar, Bandipora and Pulwama, is a clear vindication of Modi’s development oriented politics. The DDC elections, conducted in eight phases, saw an average voter turnout of over 51 per cent, showcasing that there is genuine interest among the people of the valley to take part in the electoral process. This was because they foresee development and better quality of life for themselves and their future generations, going forward. Even in the panchayat elections held in 2018, the average voter turnout was 71 per cent.
In 2015, while announcing the ambitious Rs 80,000-crore development package for Jammu and Kashmir, from the Sher-e-Kashmir cricket stadium in Srinagar, PM Modi made a passionate mention of Kashmiriyat, Jamhooriyat and Insaniyat, as in, Kashmiri culture, democracy, and humanity. “Kashmiriyat ke bina Hindustan adhura hai (Without Kashmiriyat, India is incomplete),” said Modi.
The mega package that was to change the face of the terrorist-hit region and draw the disillusioned back into the mainstream, has been a resounding success. On the employment front, thousands of jobs were created for Kashmiri migrants in the last few years. Financial assistance of Rs 578 crore through Direct Benefit Transfer (DBT) was provided to 12,588 displaced families (of the 36,384 families) from Pakistan-occupied Kashmir and Chhamb. Land was acquired for an IIT and an IIM in Jammu and for the two AIIMS in Jammu and Awantipora in Kashmir.
Power projects have moved at a fast pace. The Pakal Dul 1,000 MW project and the Srinagar-Leh transmission line are on course. Of the 28 small hydropower projects estimated to cost a total of Rs 2,000 crore, a number of projects have either already kicked off the ground or will do so, soon enough.
The Rs 80,000 crore package consists of 63 major development projects being implemented by 15 central ministries. The Chenani-Nashri tunnel, also known as the Patni-top or Syama Prasad Mookerjee tunnel, is not only India’s longest highway tunnel, but also Asia’s longest bi-directional highway tunnel. The tunnel stretching 9.28 km, that was inaugurated by PM Modi in April 2017, is a huge achievement that is set to transform how different regions of India are connected across various terrains. The tunnel has reduced travel time between Jammu and Srinagar by two to four hours, reducing the distance by 31 km, which in turn has resulted in a huge reduction in consumption of fuel. The Modi government estimates a reduction of Rs 27 lakh of fuel consumption per day, on average. Further, the tunnel is impervious to natural calamities such as landslides and avalanches which are common in the region. The core advantage the tunnel offers is, permanent connectivity to the Kashmir valley, which was hitherto only intermittently connected.
High on priority
The fact that Jammu and Kashmir has always been high on the Centre’s priority list is best amplified by PM Modi’s launch of the Social Endeavour for Health and Telemedicine (SEHAT) scheme on December 26, 2020. The scheme will cover the remaining one crore population which has not been covered under the Ayushman Bharat Scheme. With the launch of the Sehat scheme, Jammu and Kashmir is among the first in India to achieve universal health coverage. Currently, under Ayushman Bharat PM Jan Arogya Yojana (AB-PMJAY), which gives eligible beneficiaries a free health cover of Rs 5 lakh, more than 30 lakh people are already covered in Jammu and Kashmir.
An uneasy calm that had prevailed in the Valley after the revocation of Articles 370 and 35-A, has now paved the way for higher business confidence and greater stability, with terrorism and separatism taking a backseat. Abrogation of Articles 370 and 35-A has made it possible to implement the 7th Pay Commission recommendations and the Indian Penal Code (IPC), rather than the Ranbir Penal Code (RPC), which was in vogue all these years. Under Article 35-A no outsider could bag a government job.
Earlier, companies were forced to hire only locals. Revocation of the above Articles has levelled the playing field in Jammu and Kashmir. No investor was willing to set up an industry, hotel, private educational institution or private hospital, since he or she could neither buy land or property. Their wards could not get government jobs or admission to colleges. In so many decades, there are barely any major national or international chains which have set up hotels in a tourism-centric region like J&K, preventing enrichment, resource generation and job creation. But on August 5, 2019, the Modi government reset the clock, undoing all the misguided wrongs of the Nehruvian era, in an unprecedented, epoch-making decision of abrogating Articles 370 and 35 A.
Clubhouse discussions
The rest is history, as they say. In a clubhouse discussion a few years back, senior Congress leader and former Chief Minister of Madhya Pradesh, Digvijay Singh, said that the Congress would consider restoring Article 370 if it came to power, forgetting that the revocation of the said Article is full and final and cannot be undone.
J&K’s special status had thus far even shielded it from the applicability of Article 3 of the Constitution, which provides for redrawing State boundaries or the creation of a new state/UT. But all that is in the past now, as Jammu and Kashmir which are UTs now since 2019, are at the cusp of a sharp economic turnaround. Remember, Article 370 and Article 35 A empowered J&K to be a near autonomous state since it limited the Centre’s authority to just external affairs, defence, finance and communication.
This provision even allowed J&K to have a “Sadar-e-Riyasat” for a Governor and Prime Minister in place of a Chief Minister till 1965, as well as its own flag and Constitution. Hence revoking Article 370, which was in any case temporary and transitional as per Part XXI of the Constitution, was long overdue. Before the revocation, the Union government needed the concurrence of the state government to even declare a financial emergency in the state, under Article 360. But again, all that is in the past now, thanks to the conviction and determination of PM Modi.
As per the Constitution (Application to Jammu and Kashmir) Order, 2019, in place of this special status, all the provisions of the Indian Constitution are now applicable, which has helped in mainstreaming Jammu and Kashmir. Article 35 A, which comes under Article 370, proscribed and prevented non-permanent residents of J&K from permanently settling in the state, buying immovable property, acquiring land, applying for government jobs or any kind of scholarships, aids as well as other public welfare projects. The people of Jammu and Kashmir, after the revocation of Article 370, however, are now treated as one, with no discrimination between permanent residents and non-permanent ones.
Article 35 A, also referred to as the Permanent Residents Law, had thus far barred a woman (belonging to the state) from any property rights if she marries a person from outside the state. The provision also extended to the children of such women as they did not have any succession rights over the property. The revoking of this Article ended the age-old discrimination against women of J&K, who chose to marry outsiders.
Stability, market access, and predictable laws
The Modi government’s decision to revoke Article 370 has ensured stability, market access, and predictable laws in the state, to help develop an ecosystem which will give better rewards to the skills, hard work and products of the people in the region. “In today’s world, economic growth cannot happen in a closed environment. Open minds and open markets will ensure that the youth of the region will put it on the path of greater progress. The integration gives a boost to investment, innovation and incomes,” PM Modi had said, post the revocation of the discriminatory articles.
“Better connectivity, better linkages and better investment will help products of the region to reach across the country and the world, leading to a virtuous cycle of growth and prosperity to the common man,” PM Modi further said. And with the slew of infrastructure projects underway in the region, that is precisely what is happening. It needs to be mentioned here that Jammu and Kashmir had received 10 per cent of all central grants given to states over the 2000-2016 period, despite having only 1 per cent of the country’s population.
In contrast, Uttar Pradesh, making up about 13 per cent of India’s population, received only 8.2 per cent of central grants in 2000-2016. That means J&K, with a population of 12.55 million according to the 2011 census, received Rs 91,300 per person over the sixteen-year period between 2000 and 2016, while Uttar Pradesh only received Rs 4,300 per person over the same period.
Why did J&K not see any substantive development despite receiving a disproportionate amount of central assistance? Well, funds alone cannot guarantee good governance, if political will is lacking and an enabling ecosystem is missing. In one historic move, Prime Minister Modi, on August 5, 2019, by mainstreaming Jammu and Kashmir, with the rest of India, ensured that the region could prosper like any other, without being beholden to a corrupt and conniving political class.
The fact that the Modi government truly abides by the dictum of “Sabka Saath, Sabka Vikas, Sabka Vishwas and Sabka Prayas”, can be gauged from the inauguration of mega hydropower projects in Jammu on January 3, 2021. Memoranda of understanding (MoUs) were signed with National Hydroelectric Power Corporation (NHPC) to attract Rs 35,000 crore of investments, besides ensuring 24-hour power supply in the UT. Mega hydro power projects to make J&K a power-surplus region in the country were inked. MoUs signed for implementation of 850 MW Ratle HEP and 930 MW Kirthai-II HEP; execution of Sawalkot HEP (1856 MW), Uri-I (Stage-II) (240 MW) and Dulhasti (Stage-II) (258 MW), will transform the economic landscape of Jammu and Kashmir. In the last seven and a half decades, J&K was able to generate only 3,504 MW of energy. But in the next four years alone, the UT will generate 3,498 MW additional electricity to ensure energy security of the region, thanks to the vision of PM Modi.
The 19 distribution and transmission projects inaugurated on January 3, 2021, besides enhancing the ease of living in the region, are playing a significant role in raising per capita incomes, industrialisation and employment generation in J&K. The national average of electricity in rural areas is 20 hours and in urban areas is 22-23 hours across India. J&K too will reach that milestone if the pace of development is kept steady. With locals trained and given employment in NHPC ventures, J&K will see a new dawn of energy sufficiency and thereby inclusive development.
Recently, the Lok Sabha has passed the Jammu and Kashmir Reorganisation (Amendment) Bill, 2023 and the Jammu and Kashmir Reservation (Amendment) Bill, 2023. These Bills seek to represent those who became refugees in their own country and also reserve one seat in the Jammu and Kashmir Assembly for people who have been displaced from Pakistan-occupied Kashmir (PoK).
Before the Revocation of Article 370, Jammu and Kashmir had distinct rules for delimiting Lok Sabha and Assembly seats. Post the abrogation of Article 370 and the region’s transition into a Union Territory, a Delimitation Commission was formed in March 2020. This commission was tasked not only with delimiting J&K’s seats but also those of Assam, Manipur, Arunachal Pradesh, and Nagaland, aiming to finish within a year. Recently, the commission concluded its delimitation process, resulting in an increase in J&K’s legislative assembly seats from 107 to 114, facilitated by the Jammu and Kashmir Reorganisation (Amendment) Bill, 2023.
What is the Jammu & Kashmir Reservation (Amendment) Bill, 2023? Well, it seeks to amend Section 2 of the Jammu and Kashmir Reservation Act, 2004.The Jammu and Kashmir Reservation Act, 2004 provided reservation in jobs and admission in professional institutions to Scheduled Castes (SCs), Scheduled Tribes (STs) and other socially and educationally backward classes.
The amended Bill suggests a change in the nomenclature of a section of people who were earlier described as “weak and underprivileged classes (social castes)” to “other backward classes”. The Jammu and Kashmir Reorganisation (Amendment) Bill seeks to amend the 2019 Act and provide representation in the Assembly to the Kashmiri migrants and displaced persons from the PoK. It seeks to nominate two members from the Kashmiri migrant community, with one nominee being a woman and the power of the Lieutenant Governor to nominate one person representing the displaced persons from PoK to the Assembly. This bill proposes to increase the total number of seats in the Jammu and Kashmir legislative assembly from 107 to 114, of which 7 would be reserved for scheduled caste members and 9 seats for legislators from Scheduled Tribes. As per the Bill, 24 seats of the Assembly will remain vacant until the occupation in PoK ceases. Therefore, the effective strength of the Assembly is 83, which the amendment seeks to increase to 90.
The changing landscape in Kashmir owes a lot to Union Home Minister Amit Shah too, besides of course the towering contributions of PM Modi. For instance, thanks to the relentless dedication of Amit Shah, the Indian tricolour was hoisted at Lal Chowk in Srinagar in January 2022, after 30 long years. Theatres in Kashmir opened after a gap of 33 years. The Muharram procession which had been banned, has also re-started after more than three decades. Clearly, Kashmiriyat in the truest sense has found relevance again, due to the Modi-Shah duo’s determination.
Indeed, in the final analysis, it can be effectively concluded that J&K is taking a quantum leap from being power deficit to power surplus state, in four years post the abrogation of Article 370, growth has been given a new set of wings. Clean, affordable and reliable energy is the key for industries, businesses and society to grow. And, the Modi government has a well laid out plan to effectively harness hydro energy resources of J&K, with a goal to double the energy generation by 2024.The construction work on the Ring Road project, the widening of National Highway from Pathankot to Jammu to make it six-lane from four-lane as well as the acquisition of land for the landmark Katra-Delhi Expressway road corridor have started in the Jammu region.
Out of seven centrally-funded medical colleges, Jammu received four, and Kashmir received three. As for recruitment to government jobs, hereafter the selection will be made purely on the basis of a written test, without an interview. Those including the Gupkar Alliance, who were raising a hue and cry against revocation of Article 370, are merely habitual pessimists, with rapidly declining political relevance. PM Modi’s aspirational and inclusive brand of politics is heralding the winds of change in Jammu, Kashmir and Ladakh, so that everyone has a shot at growth and equity, with a better quality of life.
Sanju Verma is an economist, national spokesperson for the BJP and bestselling author of ‘The Modi Gambit’. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect Firstpost’s views.
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