With the Bharatiya Janata Party (BJP) and the People’s Democratic Party (PDP) announcing their decision to form a government in Jammu and Kashmir, two months after election results were declared, it appears that the BJP seems to have gone back on its demand for the abrogation of Article 370.
While the exact nature of a common minimum programme or CMP between the two parties remains unknown at the moment, the two parties seem to have agreed to to maintain the state's constitutional status – a key demand of PDP, which had firmly opposed any attempt to weaken Article 370, which grants special status to J&K.
BJP’s Oldest Core Issue
This definitely is a significant development: Article 370 is one of the BJP’s oldest "core issues", right from its Jan Sangh days. In 1952, Syama Prasad Mookerji, the party’s founder, had led a protest against the special status of J&K with the slogan “Ek desh mein do Vidhan, do Pradhan aur do Nishan nahin challenge (one country cannot be run with two constitutions, two prime ministers and two flags)". He was arrested by the Sheikh Abdullah government and died in prison, an incident which no less a personage than Atal Bihari Vajpayee has termed a conspiracy by the then J&K government and Nehru.
Later on during the late 1980s, the BJP under LK Advani would take this issue up in a big way. The extra autonomy that Article 370 ostensibly awarded to India’s only Muslim-majority state was used to bolster the BJP charge of "minority appeasement" along with, of course, the lack of a uniform civil code (UCC) and the existence of a Hajj subsidy. This line paid rich dividends and propelled the BJP from being a party of two Lok Sabha members to one that formed a government of its own in the 1996.
In fact, in less than 48 hours of the Modi government's swearing-in ceremony last May, Jitender Singh Rana, a first-time Lok Sabha MP from Jammu’s Udhampur, and a junior minister in the Prime Minister's Office, had stirred up a political controversy by suggesting that a debate would soon start on Article 370 of the Constitution to determine the "special status" of Jammu and Kashmir. “We are speaking to the stakeholders. Article 370 has done more harm than good,” the minister had told a TV channel.
Given how integral Article 370 has been to the BJP’s electoral and intellectual DNA, it is worth asking: why did the party give it up so easily? In power for the first time ever with a full majority in Parliament, one would have expected the BJP to try and abrogate Article 370, as it has often demanded in the past. Instead, it seems to have given up the issue in return for what is really a rather small prize: becoming the junior coalition partner in a small state.
The answer to this is something that has been well-known to constitutional experts: that Article 370 is really not all that it’s cracked up to be. There is also the small matter that, to use Ram Jethmalani's words, its abrogation "can only be done by a constitutional coup, which even our Supreme Court will declare ultra vires and void." And while it might make for great right wing rhetoric, apart from legal reasons there are also practical considerations. Even if it were possible, removing it would serve no purpose for any Indian government. In fact, in its eroded form the Article now in effect ends up placing J&K on weaker footing with respect to the Centre as compared to other states.
From Autonomy to Erosion
The original Article 370, as passed by the Constituent Assembly, did envisage a substantial measure of autonomy to J&K, far more than accorded to other states in the Union. The Centre’s original powers were limited to defence, external affairs and communications, and the President's power to change any arrangement in this regard was meant to be with the concurrence of the Constituent Assembly of the state.
But from 1954, as Rajiv Dhavan puts it, the Union exceeded its brief and later even Pandit Jawaharlal Nehru spoke of a "gradual erosion of the autonomy of Kashmir", and Centre slowly started to appropriate greater powers to itself than was permissible. In effect, J&K was reduced to the only state in the Union whose powers can be altered via the simple process of an executive order. For any other state, the constitution would have to be amended by two-thirds vote in both houses of Parliament as well, and ratification by the state legislatures.
Consequently, as academic, Amitabh Mattoo points out, “today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction”.
Less not more
What’s more, the fact that the Union assumed more powers via the instrument of a simple Presidential order means that Kashmir has actually ended up ceding far more power to Delhi than any other state in the Union.
For example, via the order of 1986, the Union acquired powers to legislate on subjects of the state, union and concurrent list as well as any other subjects not present in these three lists (residuary powers). Thus from three subjects (defence, external affairs and communications) in 1950, the Union can today virtually legislate on any subject with respect to Jammu and Kashmir.
When the Centre wanted to use President’s rule for a long period in militancy-hit Punjab, it needed no less than five constitutional amendments to increase the maximum period that Article 356 can be applied to a state (five years in the case of Punjab versus one for other states). In contrast, President’s Rule was applied for six years in Jammu and Kashmir (1990-1996) by simply passing an executive order under Article 370.
To quote constitutional expert, AG Noorani, Article 370 actually puts J&K “in a status inferior to that of other States”. As a further bonus, this extra power is conferred on the Centre even as public perception around Article 370 assumes that the opposite is happening. It’s a win-win for Delhi and no Central government in its right mind would remove Article 370.
In fact, the only organized political faction that would really benefit from Article 370 going away are the Separatists, given how it would give them an issue to attack Delhi with.
For the ideological right winger, for whom abrogating Article 370 is part of his political DNA, the BJP’s move might come as a bit of disappointment. The RSS has already made the expected noises opposing this move to retain it. This opposition though is small price to pay, given the benefits that article 370 brings to Delhi and, by extension, the BJP which is what explains its U-turn on the issue.
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While the exact nature of a common minimum programme or CMP between the two parties remains unknown at the moment, the two parties seem to have agreed to to maintain the state's constitutional status – a key demand of PDP, which had firmly opposed any attempt to weaken Article 370, which grants special status to J&K.
BJP’s Oldest Core Issue
This definitely is a significant development: Article 370 is one of the BJP’s oldest "core issues", right from its Jan Sangh days. In 1952, Syama Prasad Mookerji, the party’s founder, had led a protest against the special status of J&K with the slogan “Ek desh mein do Vidhan, do Pradhan aur do Nishan nahin challenge (one country cannot be run with two constitutions, two prime ministers and two flags)". He was arrested by the Sheikh Abdullah government and died in prison, an incident which no less a personage than Atal Bihari Vajpayee has termed a conspiracy by the then J&K government and Nehru.
Later on during the late 1980s, the BJP under LK Advani would take this issue up in a big way. The extra autonomy that Article 370 ostensibly awarded to India’s only Muslim-majority state was used to bolster the BJP charge of "minority appeasement" along with, of course, the lack of a uniform civil code (UCC) and the existence of a Hajj subsidy. This line paid rich dividends and propelled the BJP from being a party of two Lok Sabha members to one that formed a government of its own in the 1996.
In fact, in less than 48 hours of the Modi government's swearing-in ceremony last May, Jitender Singh Rana, a first-time Lok Sabha MP from Jammu’s Udhampur, and a junior minister in the Prime Minister's Office, had stirred up a political controversy by suggesting that a debate would soon start on Article 370 of the Constitution to determine the "special status" of Jammu and Kashmir. “We are speaking to the stakeholders. Article 370 has done more harm than good,” the minister had told a TV channel.
Given how integral Article 370 has been to the BJP’s electoral and intellectual DNA, it is worth asking: why did the party give it up so easily? In power for the first time ever with a full majority in Parliament, one would have expected the BJP to try and abrogate Article 370, as it has often demanded in the past. Instead, it seems to have given up the issue in return for what is really a rather small prize: becoming the junior coalition partner in a small state.
The answer to this is something that has been well-known to constitutional experts: that Article 370 is really not all that it’s cracked up to be. There is also the small matter that, to use Ram Jethmalani's words, its abrogation "can only be done by a constitutional coup, which even our Supreme Court will declare ultra vires and void." And while it might make for great right wing rhetoric, apart from legal reasons there are also practical considerations. Even if it were possible, removing it would serve no purpose for any Indian government. In fact, in its eroded form the Article now in effect ends up placing J&K on weaker footing with respect to the Centre as compared to other states.
From Autonomy to Erosion
The original Article 370, as passed by the Constituent Assembly, did envisage a substantial measure of autonomy to J&K, far more than accorded to other states in the Union. The Centre’s original powers were limited to defence, external affairs and communications, and the President's power to change any arrangement in this regard was meant to be with the concurrence of the Constituent Assembly of the state.
But from 1954, as Rajiv Dhavan puts it, the Union exceeded its brief and later even Pandit Jawaharlal Nehru spoke of a "gradual erosion of the autonomy of Kashmir", and Centre slowly started to appropriate greater powers to itself than was permissible. In effect, J&K was reduced to the only state in the Union whose powers can be altered via the simple process of an executive order. For any other state, the constitution would have to be amended by two-thirds vote in both houses of Parliament as well, and ratification by the state legislatures.
Consequently, as academic, Amitabh Mattoo points out, “today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction”.
Less not more
What’s more, the fact that the Union assumed more powers via the instrument of a simple Presidential order means that Kashmir has actually ended up ceding far more power to Delhi than any other state in the Union.
For example, via the order of 1986, the Union acquired powers to legislate on subjects of the state, union and concurrent list as well as any other subjects not present in these three lists (residuary powers). Thus from three subjects (defence, external affairs and communications) in 1950, the Union can today virtually legislate on any subject with respect to Jammu and Kashmir.
When the Centre wanted to use President’s rule for a long period in militancy-hit Punjab, it needed no less than five constitutional amendments to increase the maximum period that Article 356 can be applied to a state (five years in the case of Punjab versus one for other states). In contrast, President’s Rule was applied for six years in Jammu and Kashmir (1990-1996) by simply passing an executive order under Article 370.
To quote constitutional expert, AG Noorani, Article 370 actually puts J&K “in a status inferior to that of other States”. As a further bonus, this extra power is conferred on the Centre even as public perception around Article 370 assumes that the opposite is happening. It’s a win-win for Delhi and no Central government in its right mind would remove Article 370.
In fact, the only organized political faction that would really benefit from Article 370 going away are the Separatists, given how it would give them an issue to attack Delhi with.
For the ideological right winger, for whom abrogating Article 370 is part of his political DNA, the BJP’s move might come as a bit of disappointment. The RSS has already made the expected noises opposing this move to retain it. This opposition though is small price to pay, given the benefits that article 370 brings to Delhi and, by extension, the BJP which is what explains its U-turn on the issue.
