The rise and fall of Article 370

Righting historical wrongs may sometimes be a desirable political objective but doing so requires patience and prudence.
Article 370 (Express Illustrations)
Article 370 (Express Illustrations)

Righting historical wrongs may sometimes be a desirable political objective but doing so requires patience and prudence.

On August 5, the Narendra Modi government changed the political map of India by introducing a Presidential order signed the same day in Parliament.

The order primarily did two things. It applied all the provisions of the Constitution to the state of Jammu and Kashmir. And, it clarified that the references to the state government of J&K shall be construed as references to the Governor acting on the advice of his Council of Ministers.

The order issued under clause (3) of Article 370 virtually nullified the special status accorded to the state by Article 370 of the Constitution —a promise that had been a part of the ruling BJP’s election manifesto since its inception.

A promise for which SP Mukherjee, the founding father of the Bharatiya Jana Sangh, the BJP’s original incarnation, died in 1953.    

The order took away the special status given to the state since it joined the Republic of India through an instrument of accession signed by the erstwhile ruler of what was a princely state before the transfer of power in 1949 and reduced the state into the vessel of the Centre.  

The Modi government has been criticised by the truncated opposition within the country as well as a section of foreign observers for its “surgical operation”, which amounts to rescinding promises made during the annexation of the erstwhile princely state. Its constitutionality has been challenged in the Supreme Court.

However, the critics conveniently forget that the tool used by the Modi government—the presidential order under Article 370—to modify the constitutional provision has been used by the previous Congress governments repeatedly in the chequered history of J&K’s special status.

The first such order was issued in 1952 replacing the phrase “recognised by the President as the Maharaja of Jammu and Kashmir” by “recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat”. The change represented the abolition of the monarchy of J&K and was welcomed without a murmur.

This was followed by the more comprehensive order of 1954. It extended Indian citizenship to the ‘permanent residents’ of J&K (formerly called ‘state subjects’). The Fundamental Rights of the Constitution were extended to the state, which was brought under the jurisdiction of the Supreme Court. The order was issued after the dismissal and arrest of Sheikh Abdullah and his replacement by Bakshi Ghulam Mohammad.

Since then, 47 Presidential orders have been issued before the latest order of 2019. These orders made various other provisions of the Constitution applicable to J&K. They extended 94 of the 97 subjects in the Union List and 260 of the 395 Articles of the Constitution.

The Modi government has merely made all the Constitution provisions applicable to J&K. And instead of doing it on a piece meal basis, it has done so with one single stroke, making residents of the troubled state equal citizens of India.


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The New Indian Express