“Take care of yourself, do not pay heed to rumors, and focus only and only on your studies,” were the last words Hoorain* had heard her father say before internet and mobile connections were snapped from the Kashmir valley, a day prior to the abrogation of controversial Article 370. Little did she know that these would be the last words she would hear from him for weeks; the silence at the other end was haunting her.
As a seventeen-year-old studying in Delhi, Hoorain battled not only her friend’s polarizing opinion on what should be done with Kashmir but also the anxiety of living away from her family with no contact and limited money in her bank account. Kashmir, being a place of frequent communication shutdowns, has left unimaginable trauma on the psyches of Kashmiris in different ways. This trauma was not only limited to those stuck in Kashmir but also to those who were working, studying, or living in other states.
Many, like Hoorain, faced financial difficulties during the abrogation of Article 370 as they could not receive funds from their families, leading to situations where students were evicted from their homes due to unpaid rent. Fortunately, Hoorain was accommodated in her college hostel, but her friends and cousins were roofless for days.
On further conversation with the FoEj Media, Hoorain recalled the brief calls her family members would make after standing in queues for hours at government offices, only to hear the rushed assurances and advice to keep silent. “The inability to get through to my parents was the worst; I couldn’t do anything else for weeks. I would just wait for the calls from anyone from there who might bring some news or some information. I didn’t even know if my family was doing okay,” Hoorain said.
On being asked about the trauma she felt in Delhi, away from home, she said she would hear people around her talking about buying land and marrying Kashmiri women, as if their own consent didn’t matter, and that now the land and the people were public property.
From coming across offensive memes on social media to hearing the views of the very people she met in real life, put Hoorain in a position where she could not explain what she felt to anyone. For everyone around her, it was just a political game, but for Hoorain, her entire existence was a threat. This trauma did not only stay within her own self; it also severed her relationships, be they with her friends or her room partner.
Kashmir has faced many internet shutdowns in the past eight years, with the most severe occurring in August 2019. This specific blackout lasted over 70 days; businesses suffered, journalists faced issues, schools were shut, people had lost a sense of purpose, and the world watched.
Evolution and Abrogation of Article 370
Article 370 came into effect on October 17, 1949, to grant Kashmir autonomy in internal administration, allowing the state to have its own constitution and significant legislative powers, except in matters of defense, foreign affairs, finance, and communications.
Following this, the Indian-administered region established a separate constitution and separate flag for Kashmir. It further allowed Kashmir to deny property rights in the region to outsiders.
Moreover, the Article 35A provision was added to the Indian Constitution and to Article 370 in 1954 through a Presidential Order, which empowered the Jammu and Kashmir state legislature to define “permanent residents” of the state and grant them special rights and privileges. However, Article 35A was also scrapped along with Article 370 in August 2019.
In essence, this Article did three things:
- It limited the power of the Indian Parliament to make laws for Jammu and Kashmir to the three subjects mentioned in the IoA—defense, external affairs, and communications.
- It stated that, except for Article 1, the Constitution of India did not apply to Jammu and Kashmir. Article 1 states that India is a union of states.
- It stated that this Article could only be amended by the President with the consent of the Constituent Assembly of Jammu and Kashmir.
Pre Independence era
Jammu and Kashmir was considered a princely state during British rule and at the time of India’s partition in 1947. Under British rule, this princely state was created after the First Anglo-Sikh War, which took over the Kashmir Valley from Sikhs and sold it to the Maharaja of Jammu, Gulab Singjh, the Dogra ruler, for Rs 75 lakh.
Under the Dogra rule, particularly during the reign of Maharaja Hari Singh, Jammu and Kashmir experienced both autonomy and oversight by the British. Jammu and Kashmir enjoyed its sovereignty, except for matters of foreign affairs, defense, and communications. It also restricted outsiders to owning properties in the state.
However, at the time of India’s partition in 1947, the Maharaja, Hari Singh, initially chose to remain independent. However, following an invasion by tribal militias from Pakistan, he sought military assistance from India, agreeing to sign the Instrument of Accession on October 26, 1947. This document allowed the Indian Parliament to legislate on defense, foreign affairs, and communications concerning Jammu and Kashmir while granting the state significant autonomy. As the Indian Constitution was being drafted, Article 370 was introduced to reflect this special relationship, allowing Jammu and Kashmir to maintain its own constitution and flag.
A day after signing the instrument of accession, the agreement was accepted by Lord Mountbatten (then Governor- General of India), under the provision of the Indian Independence Act.
In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of the Indian Independence Act unless such amendment is accepted by me by an instrument supplementary to this Instrument’. In Clause 7 of the Instrument of Accession, he said: ‘Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
Clause 7 of the IoA highlights that Jammu and Kashmir’s accession to India was on a condition that the state would retain the right to have its own constitution and a significant degree of autonomy. This clause acted as a foundation for building Article 370.
The key purpose of Article 370 was to protect these rights in Jammu and Kashmir. On August 15, 1947, when India became independent, J&K was not a part of its territory. It was only through the Instrument of Accession, dated October 27, 1947, signed by the Maharaja of J&K, that the state agreed to the Dominion of India. The instrument highlighted that the Indian legislature could make laws for Jammu and Kashmir only in matters related to defense, external affairs, and communication.
While trying to explain the technical challenges of abolishing Article 370 to parliament, Nehru stated in Lok Sabha that, “ I think that it is a very good rule which should continue, because Kashmir is such a delectable place that moneyed people will buy up all the land there to the misfortune of the people who live there; that is the real reason and that reason has applied ever since British times and for one hundred years or more”
Drafting of Article 370
Drafting of Article 370 meant to protect the special status of Jammu and Kashmir. Jawaharlal Nehru entrusted N Gopalaswami Ayyangar, one of the main members of the seven-member Drafting Committee of the Indian Constitution.
To talk about the significance of Article 370, Ayyangar highlighted to the constituent Assembly the “special conditions” in Jammu and Kashmir.
“In the first place, there has been a war going on within the limits of Jammu and Kashmir State. There was a cease-fire agreed to at the beginning of this year, and that cease-fire is still on. But the conditions in the state are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the state be geared to these unusual conditions until normal life is restored, as in the case of the other states,” said Ayyangar.
He further affirmed that the Indian government had agreed that a constituent assembly, as representative of the people of Jammu and Kashmir, would determine the constitution of Jammu and Kashmir and decide on the sphere of union jurisdiction over the state’.
On January 26, 1950, the Constitution of India was enacted, and Article 370 was incorporated to define the relationship between Jammu and Kashmir and the rest of India. This article grants special autonomous status to the region, reflecting the unique circumstances of its accession to India.
Erosion of Article 370
The present BJP-ruled government released the election manifesto for the 2009, 2014, and 2019 general elections. It affirmed its intention to abrogate Article 370.After winning the election, the BJP government achieved its aim and dissolved Article 370. This move took place with two Presidential Orders ( CO 272 and CO 273) on August 5 and August 6, 2019, respectively.
August 5, 2019
The first order issued on August 5, 2019, amended Article 370, which dealt with the interpretation of the Constitution. The order stated that the phrase ‘Constituent Assembly’ under Article 370 shall be read as ‘Legislative Assembly’ of the State.
Immediately after this Order, a Statutory Resolution was passed by both Houses of Parliament recommending that Article 370 be dissolved.
August 6, 2019
The next day, on August 6, 2023, the President issued the second Order which held that Article 370 ceased to operate and that Jammu and Kashmir was a part of the Union of India.
Jammu and Kashmir Reorganization Act
The year 2019 highlights the passing of the Jammu and Kashmir Reorganization Act, 2019. This divided the state into two union territories (J&K and Ladakh). Moreover, J&K had a legislative assembly and Ladakh did not.
Removal of Constitution, Flag and Own Property
This abortion resulted in the removal of the special status granted to Jammu and Kashmir by the constitution. The Indian government can now take decisions related to matters other than those mentioned in Article 370 as well.
The Constitution and other territorial laws of India apply to these two territories as they would to any other state and union territory in the country. The Constitution of Jammu and Kashmir is now redundant, and the region no longer has a separate flag.
The benefits granted to permanent citizens of Jammu and Kashmir to own and acquire property within the region are dissolved.
December’ 2023
On December 11, 2023, the Supreme Court of India delivered a unanimous verdict upholding the constitutional validity of the government’s decision to abrogate Article 370, which had granted special status to Jammu and Kashmir. The five-judge Constitution Bench, led by Chief Justice D.Y. Chandrachud, addressed various petitions challenging the legality of the abrogation and the subsequent reorganization of Jammu and Kashmir into Union Territories.
For the general public, it is just the past, but for Kashmiris, it will always be their present. For the general public, Article 370 is history, but Hoorain says, “Article 370 will always live inside my heart, our hearts.”
