5th August 2019, and a year thereafter

 5^th August 2020 shall mark exactly one year since the Modi Government made far-reaching changes to the constitutional structure of Jammu & Kashmir (J & K) and Ladakh – by amending Article 370, abrogating Article 35A, and converting the State into 2 Union Territories.

Before recalling the changes introduced in the Rajya Sabha on 5^th August, let us go back a bit further.

The month that preceded 5^th August 2019

Throughout the month of July, there was speculation in the Kashmir Valley that some major changes were being contemplated by the Central Government. A large number of armed troops were brought in, the annual Amarnath Yatra was cancelled, and tourists were asked to leave. President’s Rule had also been in force for more than 6 months. Meanwhile, Satya Pal Malik, the Governor of J &K, tried to assuage fears by stating that there was no need to worry about any change to Article 370 or 35A.

On 4^th August, speculation and anticipation reached such a stage that all political parties in J & K (except the BJP) decided to hold a meeting at Farooq Abdullah’s residence in Gupkar Road, Srinagar. The political parties jointly issued the Gupkar Declaration, which stated that they would be united in their effort to protect J & K’s identity and autonomy. The Declaration also stated that they would not accept any unilateral changes to Article 370 and 35A, or a bifurcation of the State. On the same evening, the J & K Administration disabled access to broadband, landline and internet communication services.

The morning of 5^th August: The Rajya Sabha meets with a surprise

On the morning of Monday, 5^th August 2019, the fears of all political leaders came true, and the Governor was forced to eat his words. Home Minister Amit Shah proposed a slew of constitutional changes in the Rajya Sabha.

In fact, legislative changes began just before Parliament Assembled, as the Central Government got the President to sign an Executive Order that was issued under Article 370. This executive order effectively amended clause (3) of Article 370. Instead of the Constituent Assembly of J & K, the Legislative Assembly would now have the power to make a ‘recommendation’ to amend or abrogate Article 370.

However, as J & K was under President’s Rule, it did not have a Legislative Assembly after the split of the BJP-PDP alliance. After the Executive Order was issued, Home Minister Amit Shah moved a statutory resolution in Parliament, contending that as the Legislative Assembly was suspended, the power to amend Article 370 shall now vest with Parliament. What was left unanswered was whether Parliament could perform the task of a Legislative Assembly, which is also supreme within its own sphere.

The statutory resolution effectively achieved 3 objectives – (i) it amended Article 370 to the effect that all provisions of the Indian Constitution shall apply to J & K without any exception or modification; (ii) it abrogated Article 35A, which was an enabling provision that permitted conferment of special rights and privileges to the permanent residents of the State of J & K; (iii) it repealed the Jammu & Kashmir Constitution, which had been enacted and adopted in 1956 by an elected Constituent Assembly of J & K.

If this was not enough, Home Minister Amit Shah also moved the Jammu & Kashmir Reorganization Bill, which converted the erstwhile State of J & K to two separate Union Territories of J & K and Ladakh. This was the first time in our constitutional history that a State had been converted to a Union Territory. As President’s Rule had been imposed, the changes were made without complying with the mandate of Article 3 of the Constitution, which requires the Legislative Assembly of a State to ‘express its views’ – when there is a proposal to reorganize or bifurcate a State.

As Rajya Sabha MP Derek O’Brien points out, MP’s were not even given a copy of the statutory resolution and the Reorganization Bill in advance, as this was added to the House’s List of Business in the last minute. The resolution and the Reorganization Bill was passed by the Rajya Sabha on 5^th August itself, despite the fact that MP’s lacked sufficient time to study the proposals in detail. The unilateral manner in which the changes were made does not stop with the Rajya Sabha. The proposed changes were not even discussed with the leaders of mainstream political parties of J & K, be it Mehbooba Mufti or Omar Abdullah.

As the Government was explaining its rationale for these constitutional changes, the J & K Administration already began enforcing the orders it had received. Farooq Abdullah, Omar Abdullah, Mehbooba Mufti and other political leaders such as Sajad Lone were placed under house arrest. But before we move to these preventive detentions, let us briefly discuss the Government’s rationale for the constitutional changes it made.

The Government’s rationale and its discontents

For abrogating Article 370 and 35A, the Government gave primarily 3 reasons. First, Article 370 was being used as a tool to fuel separatism and militancy in the Kashmir Valley, and hence needed to go. In this regard, it was also argued that the de-operationalization of Article 370 shall ‘completely integrate’ J & K with India. But, Article 370 never stalled any such integration. The Constituent Assembly of India had envisaged Article 370 to be a bridge between J & K and the Government of India.

It was drafted to govern the manner in which constitutional provisions and parliamentary laws shall be applicable in J & K. The text and wording of Article 370 did not in any way stall or make J & K’s integration with India partial. Moreover, the J & K Constitution (which was also repealed through the statutory resolution) itself stated that J & K’s integration with India is final and complete.

Under Section 3 of the J & K Constitution, the State of J & K “is and shall be an integral part of the Union of India”. This provision of the J & K Constitution was simultaneously repealed, while the Government went about claiming that de-operationalizing Article 370 had ‘completely integrated’ J & K with India.

Second, they argued that abrogating Article 35A shall ensure greater investment and economic activity in J & K and Ladakh, as outsiders would now be allowed to purchase land in the newly constituted Union Territories. What the Government did not say was that outsiders were prevented from acquiring land due to State land laws such as the J & K Agrarian Reforms Act, 1976, and not because of Article 35A.

Abrogating Article 35A alone would have not allowed outsiders to purchase land, as Article 35A itself did not place any such restriction. For precisely this reason, the Fifth Schedule of the J & K Reorganization Act,2019 amended these State land laws, to permit outsiders to acquire land. These amendments were separate, and were not based on any restriction placed by Article 35A.

Third, it was argued that these would lead to ‘more rights’ for the residents of Jammu & Kashmir, as beneficial legislations such as the Right to Education Act, 2009 (RTE) shall now be applicable. What was left unsaid was that J & K had their own version of many of these beneficial legislations. For instance, it had its own version of the RTE i.e. the J & K School Education Act, 2002 – which had equally beneficial provisions. Along with this, the justification given for converting the State of J & K into two Union Territories was that this would lead to ‘better governance’, and that Statehood can be restored once militancy reduces, and the security situation of the State improves.

But, didn’t the Government also say that ‘abrogating’ Article 370 would in itself be a huge step to reduce militancy? And if these changes were indeed so beneficial, why were political leaders and the people of J & K not consulted with and taken on board?

The level of contradictions does not end here. If the Government was so confident of the benefits associated with its decision, then what was the need to keep political leaders under house arrest? And shut down all communication networks (be it internet or landlines) in advance?

The aftermath

The ‘house arrest’ of political leaders

The answer as to why political leaders were immediately placed under house arrest is quite straightforward. Keeping mainstream political leaders in house arrest, by invoking the J & K Public Safety Act, 1978 ensures that they are unable to speak out against these unilateral constitutional changes.

As Omar Abdullah and Iltija Mufti (Mehbooba Mufti’s daughter) mention in recent interviews (see here and here), many detainees were given the option of signing a bond – which would end their house arrest. But, there was a catch. The bond mentioned that they would be released, but the pre-condition was that they would have to fully agree to not speak about any of the changes brought about from 5^th August 2019. The intention was simple – stay silent about all the changes that were made on 5^th August, and you can be set free! If the changes made were indeed so good, then what was the need to ensure people stay silent about them?

If this was not sufficient, a dossier issued by the Police in February, which extended Omar Abdullah’s preventive detention one final time, had stated that he was being detained because he had the ability to ‘instigate gullible masses against the policies of the Central Government’! Yes, the masses were so gullible that there was no need to take them on board before altering the constitutional structure of a State?

A number of political leaders such as Saifuddin Soz have also been subjected to informal detention, where there would be no formal detention order, but the Police would not let the detainee leave his house. When Saifuddin Soz challenged his detention through a habeas corpus petition in the Supreme Court, the J & K Administration contended that it had not detained Soz, and that there was no detention order issued against him.

Justice Arun Misra took this claim at face value, and dismissed the petition. Shortly thereafter, when NDTV and India Today reached Soz’s house, he demonstrated how the Police officers were not letting him leave his residence, stating that they had ‘orders from above’.

Along with mainstream political leaders, even the people of J & K were effectively subjected to detention. Under the garb of preventing mass protests, the J & K Administration invoked Section 144 of the CrPC to enforce lockdowns and curfews throughout the State. Most schools also had to remain shut post 5^th August. While the rest of India faced lockdowns and curfews only after Covid-19 hit us in March, Jammu & Kashmir has been grappling with it since 5^th August. Due to such an extended lockdown and curfew, the Government’s claim regarding an increase in investment and economic activity also falls flat.

Suspension and curtailment of internet and other communication networks

Another major avenue for civil rights suppression was the suspension of internet services, along with other communication networks such as landlines. This suspension commenced on the evening of 4^th August, and has not been completely relaxed even as of today. The blanket ban on internet services continued from August to January. This is now infamously regarded as the longest communications suspension in our history.

The ban was partially relaxed only after the Supreme Court’s decision in the Anuradha Bhasin case, which held that a blanket ban on internet services was disproportionate, and directed the J & K Administration to periodically review its orders. Subsequently, internet services have been allowed at 2G Speed, and landline networks were restored.

When the Supreme Court was petitioned in May to restore 4G internet services, the J & K Administration opposed this move, and made a mutually contradictory argument. They contended that the speed had to be restricted to 2G as there was an increase in militancy and terrorism, and there was a need to pre-empt the misuse of the internet by militants and terrorists. But, they simultaneously contended that 2G speed was sufficient for students to attend online classes during the Covid-19 pandemic, and for doctors to provide telemedicine services. There is a major contradiction in this argument.

If 2G speed is sufficient to attend online classes on Google Meet and Zoom, then why is it not ‘sufficient’ for misuse by militants and terrorists? The Supreme Court failed to address this contradiction, and refused to intervene even after the petitioners presented evidence of the hardships faced by the people of J & K.

Also, while there is no direct link between access to 4G internet and militancy, militancy cannot be used as a justification for a prolonged denial of 4G internet, which is accessed in all other parts of India. This suppression of civil and socio-economic rights is only exacerbated during a pandemic – where students are forced to attend online classes, employees are forced to work from home, and when a significant number of patients can only access telemedicine facilities.

The unilateral imposition of a new domicile policy in the UT of J & K

In the first week of April, the Home Ministry notified a new domicile reservation policy for the Union Territory of J & K. This was also done without any pre-legislative consultation process. After widespread protests that the policy had severely diluted the domicile requirement, the policy was amended within 72 hours. But, how did it become possible in the first place for the Home Ministry to make the reservation policy for J & K? The answer lies in the repeated extension of President’s Rule, which has now been in place since December 2018.

Under the J & K Reorganization Act, 2019, the newly formed Union Territory of Ladakh is to be administered directly by a Lieutenant Governor appointed by the Central Government. But, on the other hand, akin to the Delhi model, the Union Territory of J & K is envisaged to have a Legislative Assembly, along with a Lieutenant Governor.

If President’s Rule had been removed, and fresh elections were held to the Legislative Assembly, then the Home Ministry’s powers to frame policy prescriptions would have been curtailed. In my view, this was precisely the reason why there was no plan to hold elections in J & K even before the onset of the coronavirus pandemic.

Also, while certain sections of the Ladakh population had welcomed the Centre’s decision to carve it out as a separate Union Territory, it was later on realized that the special rights and privileges conferred to the ‘permanent residents’ of the erstwhile State of J & K were automatically taken away, as Article 35A and the J & K Constitution has been abolished.

For this reason, several socio-religious groups in Ladakh have made demands for domicile reservation – that is similar to the special protections that were granted prior to 5^th August. Ladakh has hence also been solely left to the Home Ministry’s mercy, which now has absolute discretion in all policy matters.

The repeal of the J & K Constitution

Finally, let me conclude with the repeal of the J & K Constitution, which often gets excluded from public debate. The J & K Constitution was framed and adopted in 1956 by an elected Constituent Assembly. The purpose behind drafting a separate Constitution was to preserve and safeguard the identity and autonomy of the people of J & K – in a situation where Pakistan was leaving no stones unturned to usurp J & K away from India.

The separate Constitution did not intend to create any parallel legal system, and itself stated in Section 3 that J & K “is and shall be an integral part of the Union of India”. Moreover, Section 147 of the J & K Constitution clearly stated that even the J & K Legislature shall not have the power to amend some of its provisions, such as Section 3, Section 5 and Section 147. If even the J & K Legislature lacked the power to amend the entire Constitution, then how can Parliament abolish it as a whole?

Even if legal provisions were kept aside, there is another fundamental question that we should ask ourselves. How can Parliament unilaterally abolish a Constitution that was enacted and passed by the J & K Constituent Assembly, which consisted of the elected representatives of the people of the State? How can a Constitution, which the people of J & K adopted for themselves, be abolished without in any way taking them on board?

Shouldn’t there also be implied or inherent limitations on Parliament’s power, when Jammu & Kashmir was under President’s Rule, and the views of an elected Legislature could not be taken on board? This is precisely the constitutional betrayal that took place on 5^th August 2019.

The remedy

One year down the line, the situation is far worse than what it was at the same time last year. This can be remedied (albeit partially) only if suppression of civil and socio-economic rights ends in the near future, after full internet connectivity is restored and all political detainees are released. Urgent steps must also be taken to facilitate the return of Kashmiri Pandits - who continue to live in inhuman conditions at refugee camps in Jammu, almost two decades after their forced exile from the Valley.

The long-term goal must be to restore full statehood, and hold fresh elections. Normalcy cannot be restored until we continue to treat J & K and Ladakh in an abnormal manner, and deprive their residents of rights and freedoms that are often taken for granted, in all other parts of India.