On 5 August, the union home minister Amit Shah announced in the Rajya Sabha that the Bharatiya Janata Party government had effectively nullified Article 370 of the Indian constitution, which granted a special status to Jammu and Kashmir. Shah tabled two bills in the upper house that necessitated revoking the special status guaranteed to the state. In addition to the bills—the Jammu and Kashmir Reorganisation Bill, 2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019—Shah also brandished a presidential order, dated the same day, which extended all the provisions of the Constitution to the state, defanging Article 370. Both bills passed in the house.
Following Independence, Article 370 had formalised the terms of Jammu and Kashmir’s accession to the Indian union—as stipulated in the Instrument of Accession. Among other things, Article 370 mandated that barring certain subjects—such as defence and foreign policy—the central government was required to seek the concurrence of the Jammu and Kashmir government before it could legislate in the state.
Yet, as the state has been under President’s Rule since December 2018, the centre circumvented this requirement—the presidential order allowed the governor to assent in lieu of the state legislature. Through the Reorganisation bill, the government split the state into two union territories—Ladakh and Jammu and Kashmir. That the centre acted in the absence of a state government and through an executive order also raised questions about the constitutional validity of its decisions.
Andrew Whitehead, a historian and visiting faculty at the Asian College of Journalism in Chennai, who was formerly a journalist, spoke with Mehak Mahajan, an editorial fellow at The Caravan. They discussed the historical context of Article 370 and its relevance, or the lack of, to the contemporary political situation.
Mehak Mahajan:What is your reaction to the BJP government’s decision to effectively dismantle Article 370?
Andrew Whitehead: It is something that the BJP has said it intends to do in repeated election manifestos. But I am actually quite surprised that they have done it. I thought that the BJP had taken a settled decision, that though they wanted to rescind Kashmir's special status, it was more trouble than it was worth. I say that because Article 370 does not have that much practical significance. Its huge importance is symbolic. So, initially when Article 370 was instituted, it meant that not all legislation approved in Delhi, applied in Kashmir. It meant that institutions, such as the Supreme Court and the Election Commission did not necessarily have authority in Kashmir. But those particular provisions were basically diluted decades ago.