ALL INDIA POLITICAL PARTIES MEET

AGENDA: Abrogation of Article 370 and its impact on

the foreign and domestic policy.

TABLE OF CONTENTS

1. INTRODUCTION

2. JAMMU AND KASHMIR (Reorganisation bill 2019)

3. THE POLITICAL IMPACT OF INDIA’S REMOVAL OF JAMMU & KASHMIR’S

SPECIAL STATUS

4. THE IMPACT ON FOREIGN POLICY

5. THE LEGAL TANGLE

A word from the Executive Board Honorable delegates,

It is my utmost pleasure to welcome you to IGNITE MUN’19. I’m honored and excited to

direct the AIPPM committee and look forward to meeting you all. To the MUN veterans out

there, I hope you'll have an enriching debate and to the new comers, I’m really excited to be

a part of your experience. What I desire from the delegates is not experience but interest

and keenness in learning. The following pages will guide you with the agenda as well as the

committee. The Guide touches upon all the different aspects that are relevant and is

expected to contribute to fruitful speaking sessions in the committee.

However, it has to be noted that the background guide only contains basic information

which may form the basis for the speech and your research. I hope that you put in

substantial efforts to research and get the best out of the conference. Let’s make the

committee’s direction and debate positive and productive. Good luck delegates!

Rishabh Asrani

(Moderator)

Introduction HOW KASHMIR GOT ARTICLE 370: HISTORY RETOLD

Kashmir owes its origin to a legendary rishi (ascetic-scholar) Kashyap, who is credited to

have reclaimed it from a huge lake that existed where Kashmir Valley is located today. The

land was first called in ancient literature Kashyapmar, which was corrupted to become

Kashmir.Maurya emperor Ashoka had a strong connection with Kashmir. He founded the

city of Srinagar and brought Buddhism to Kashmir, which saw a number of ruling dynasties

till the middle of fourteenth century. Around this time, a Tibetan Buddhist refugee

Rinchana, who later converted to Islam, established first Muslim dynasty in Kashmir. When

Akbar became the Mughal emperor, he annexed Kashmir to his empire.

The state of Jammu and Kashmir acquired its modern shape under Ranjit Singh, who

established a Sikh confederation and annexed Kashmir from the Mughal Empire in early

19th century. The administration of Jammu and Kashmir was given to a local chieftain from

the Dogra community, who expanded it by capturing Ladakh and Baltistan for the Sikh

empire.

By this time, the British rule of East India Company was getting stronger in India. The

company had successfully challenged the advance of Sikh empire, whose leader Ranjit Singh

was forced to sign a Treaty of Amritsar in 1809, which was formalised in 1846 after first

Anglo-Sikh war. This treaty decided the fate of Jammu and Kashmir.The British trader-

rulers "sold" the dominion of Jammu and Kashmir to Dogra king Gulab Singh for Rs 75 lakh.

The Dogra king ruled over the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and

Ladakh. The arrangement continued till 1947, when the British divided the Indian

subcontinent into two countries - India and Pakistan.

Jammu and Kashmir ruler Hari Singh appeared to chart out his own way without acceding

to India or Pakistan. It signed a standstill treaty with Pakistan, which breached the

agreement by invading Jammu and Kashmir in October 1947. India did not intervene till

Hari Singh signed the Instrument of Accession with India and sought help from New Delhi.

Hari Singh sought special privileges for his people on the lines of a 1927 law that denied

outsiders the right to own property in the state. This law restricted the right to own

property in Jammu and Kashmir in line of inheritance only. This had been brought

apparently to keep the Britishers away from the salubrious Valley of Kashmir.

The Jawaharlal Nehru government agreed to Hari Singh's condition subject to future final

settlement. The matter was placed before the Constituent Assembly of India, which was

dealing with the task of framing the Constitution of India. After a lot of deliberation, Article

370 was inserted in the Constitution's twenty-first part that proclaimed it to be

"Temporary, Transitional and Special Provision".

WHAT IS ARTICLE 35A?

This provision of the Constitution allows the Jammu & Kashmir state Assembly to define

who is and is not a “permanent resident” of the state. To further break it down, this

provision of the Constitution gives the legislators from Jammu & Kashmir the exclusive

power to determine as to which people in or outside the state will have special rights and

privileges granted by the state.

The provision, inserted through a special Presidential order in 1954, also gives the state

Assembly powers to determine the recipients of state grants, the right to purchase land and

property in the state, as well as settling permanently in the region. Other than this, the

legislative Assembly of Jammu & Kashmir can use the provision to restrict rights of any

person not classified under “permanent resident” of the state.

CAN ARTICLE 35A BE AMENDED OR REPEALED?

The repealing of Article 35A could be a legal uphill task for the central government, experts

said. For any changes to be made to the provision, the constituent Assembly of the state has

to consent to it. The constituent Assembly of the state, however, ceased to exist in 1957.

This, constitutional expert Shubhankar Dam said, made seeking nod from the Assembly

impossible.

“One has to understand where this provision derives its powers from. When it was

introduced in 1957, the state constituent Assembly raised the demand, which was then

inserted on the recommendation of the President. The clause was introduced due to

compromises which the Union had to make at that time. The time and context have to be

understood,” said Dam.

Other experts, however, disagree and say that since there is a valid state legislative

Assembly in the state, which also has constituent powers, any changes to Article 35A can be

done by it.

WHAT HAPPENS IF ARTICLE 35A IS REPEALED?

The political ramifications of the decision to repeal Article 35A notwithstanding, there are

other legal-regulatory challenges that the government could face if this article were to be

repealed. One of the first is that the jurisdiction of the Supreme Court of India as well as the

Election Commission would get limited, some experts said.

Other than repealing, one option before the government is to delete Article 370 altogether,

which would then automatically strike off Article 35A. This would, however, mean that the

government would have to have a two-thirds majority in both the lower and upper House

of Parliament, said Dam.

WHAT IS ARTICLE 370?

Article 370, which has been the bone of contention between the state’s politicians and the

central BJP leadership, deals with special powers conferred upon the state of Jammu &

Kashmir. It allows the state constituent Assembly to make its own Constitution, thereby

giving it an “autonomous state” power. After the accession of the state to India in 1947,

Article 370 served as a “mechanism for managing Centre-state relations with specific

reference to Jammu & Kashmir,” senior journalist, late B G Verghese, had said in his book A

J&K Primer.Apart from the autonomy, Article 370 also lends other powers such as the need

of “concurrence of the state government” if the central government plans to make

amendments to the concurrent list of subjects.

IS ARTICLE 370 A TEMPORARY PROVISIONS?

Despite several challenges to the provision on account of it allegedly being a temporary

provision, the Supreme Court as well as the High Court’s has repeatedly upheld that Article

370 is indeed a permanent provision of the Constitution. In a judgment delivered in 2018,

the top court said that though the article’s title noted it as ‘temporary’, it was very much of

a permanent nature.“The issue concerned is covered by the judgment of this court in the

2017 SARFAESI matter, where we have held that despite the head note of Article 370, it is

not a temporary provision," a Bench of justices A K Goel and R F Nariman had then said.

ARE ARTICLE 35A AND ARTICLE 370 SPECIAL PROVISIONS?

Despite the popular notion that both Article 35A and Article 370 confer a special-state

status to Jammu & Kashmir, most constitutional experts say that there are similar

arrangements the Centre has with several other areas.“There are similar exceptions in

many areas across India. For example, in many states, including Himachal Pradesh, and the

Northeast, no one other than those domiciled in these states can purchase land or property.

These states do not have the concept of permanent residents,” said Dam.

JAMMU & KASHMIR REORGANISATION

BILL 2019:

1. The Jammu and Kashmir Reorganisation Bill, 2019 was introduced in Rajya Sabha on

August 5, 2019 by the Minister of Home Affairs, Mr. Amit Shah. The Bill provides for

reorganisation of the state of Jammu and Kashmir into the Union Territory of Jammu

and Kashmir and Union Territory of Ladakh.

2. Reorganisation of Jammu and Kashmir: The Bill reorganises the state of Jammu and

Kashmir into: (i) the Union Territory of Jammu and Kashmir with a legislature, and (ii)

the Union Territory of Ladakh without a legislature. The Union Territory of Ladakh will

comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will

comprise the remaining territories of the existing state of Jammu and Kashmir.

3. Lieutenant Governor: The Union Territory of Jammu and Kashmir will be administered

by the President, through an administrator appointed by him known as the Lieutenant

Governor. The Union Territory of Ladakh will be administered by the President,

through a Lieutenant Governor appointed by him.

4. Legislative Assembly of Jammu and Kashmir: The Bill provides for a Legislative

Assembly for the Union Territory of Jammu and Kashmir. The total number of seats in

the Assembly will be 107. Of these, 24 seats will remain vacant on account of certain

areas of Jammu and Kashmir being under the occupation of Pakistan. Further, seats will

be reserved in the Assembly for Scheduled Castes and Scheduled Tribes in proportion

to their population in the Union Territory of Jammu and Kashmir. In addition, the

Lieutenant Governor may nominate two members to the Legislative Assembly to give

representation to women, if they are not adequately represented.

5. The Assembly will have a term of five years, and the Lieutenant Governor must summon

the Assembly at least once in six months. The Legislative Assembly may make laws for

any part of the Union Territory of Jammu and Kashmir related to: (i) any matters

specified in the State List of the Constitution, except “Police” and “Public Order”, and (ii)

any matter in the Concurrent List applicable to Union Territories. Further, Parliament

will have the power to make laws in relation to any matter for the Union Territory of

Jammu and Kashmir.

6. Council of Ministers: The Union Territory of Jammu and Kashmir will have a Council

of Ministers of not more than ten percent of the total number of members in the

Assembly. The Council will aide and advice the Lieutenant Governor on matters that the

Assembly has powers to make laws. The Chief Minister will communicate all decisions

of the Council to the Lieutenant Governor.

7. High Court: The High Court of Jammu and Kashmir will be the common High Court for

the Union Territories of Ladakh, and Jammu and Kashmir. Further, the Union Territory

of Jammu and Kashmir will have an Advocate General to provide legal advice to the

government of the Union Territory.

8. Legislative Council: The Legislative Council of the state of Jammu and Kashmir will be

abolished. Upon dissolution, all Bills pending in the Council will lapse.

9. Advisory Committees: The central government will appoint Advisory Committees, for

various purposes, including: (i) distribution of assets and liabilities of corporations of

the state of Jammu and Kashmir between the two Union Territories, (ii) issues related

to the generation and supply of electricity and water, and (iii) issues related to the

Jammu and Kashmir State Financial Corporation. These Committees must submit their

reports within six months to the Lieutenant Governor of Jammu and Kashmir, who must

act on these recommendations within 30 days.

10. Extent of laws: The Schedule lists 106 central laws that will be made applicable to

Union Territories of Jammu and Kashmir and Ladakh on a date notified by the central

government. These include the Aadhaar Act, 2016, the Indian Penal Code, 1860, and the

Right to Education Act, 2009. Further, it repeals 153 state laws of Jammu and

Kashmir. In addition, 166 state laws will remain in force, and seven laws will be

applicable with amendments. These amendments include lifting of prohibitions on

lease of land to persons who are not permanent residents of Jammu and Kashmir.

THE POLITICAL IMPACT OF INDIA’S REMOVAL OF JAMMU & KASHMIR’S SPECIAL STATUS

There are two possible implications of the ruling BJP’s decision to abrogate Article 370: first,

the BJP may gain political mileage from the move, both in J&K and the rest of India. Secondly,

New Delhi may now be able to further emphasize the Kashmir issue as an “internal” matter

of India in response to attempts at third-party mediation. However, the government

understands the risks involved, such as possible civilian unrest and terror attacks in the

Valley, communal tensions in J&K, and the internationalization of the Kashmir issue.

Domestic Political Angle

Even though New Delhi may face challenges in stabilizing the law and order situation in the

Kashmir Valley after this revocation decision, the BJP’s choice to abrogate Article 370 may

possibly give it long-term political mileage across India and a real shot at reshaping the

political status quo in J&K.

Moreover, the timing of the decision is also critical. The ruling BJP likely felt emboldened in

taking important domestic political decisions after the historic mandate it received in the

recently concluded parliamentary elections. It was also likely empowered by the fact that

the political opposition remains weak and not unified, as became evident after some parties

supported the government’s decision to revoke J&K’s special status, while the Indian

National Congress (INC) and the Communist parties among others opposed it. Lastly, the

BJP government will have almost five years—until the 2024 Lok Sabha elections—to bring

political stability to J&K and complete the reorganization process.

After scrapping J&K’s special status, the BJP sees an opportunity to form government in the

newly-declared Union Territory of J&K. The government intends to undertake delimitation

of the J&K legislative assembly constituencies in order to conduct local elections once the

law and order situation normalizes in the Kashmir Valley. The proposed delimitation will

redraw the scope and size of constituencies and determine the total number of seats to be

reserved for the Scheduled Castes, those who belong at the bottom of the Indian caste

system, in J&K. The new constituencies map in J&K may give some electoral advantage to

the ruling BJP as it is possible that its stronghold Jammu may obtain more seats after the

delimitation process is complete. If that happens, the BJP will have a realistic chance to form

the new government in J&K and appoint its own chief minister (CM).

If the BJP is unable to secure enough seats to rule from Jammu through the delimitation

process, it may require support from a Kashmir Valley-based party in a coalition

government. The BJP understands that it has a marginal political presence in the Kashmir

Valley, where many are opposing the abrogation of Article 370. The two most popular

political parties in Kashmir, the National Conference (NC) and the People’s Democratic

Party (PDP), are unlikely to join hands with the BJP after recent arrests of their top leaders,

both former CMs of the state of J&K, Omar Abdullah and Mehbooba Mufti respectively.

Further, the possibility of a united opposition in the Valley may dampen the BJP’s chances

of ruling the new Union Territory. In the worst-case scenario, Kashmir-based parties may

also decide to boycott legislative assembly elections to protest the scrapping of Article 370.

Nevertheless, the decision to revoke Article 370 will give more political mileage to the

ruling BJP across India. Popular support from various constituencies will also make it an

electoral talking point for upcoming state elections and the 2024 Lok Sabha polls. However,

an unsuccessful integration process might have long-term political implications for the BJP

since opposition parties may see it as a reason to unite against the ruling party in future

state and parliamentary elections.

THE IMPACT ON FOREIGN POLICY:

India’s decision to revoke J&K’s special status is likely to further complicate India-Pakistan

bilateral relations. Recent geopolitical developments such as the anticipated withdrawal of

U.S. troops from Afghanistan, the possible return of an emboldened Taliban in Kabul, and

U.S. President Donald Trump’s comments regarding mediation of the Kashmir issue may

have compelled the Modi government to expedite the process of scrapping the special status

of J&K before the monsoon session of the Indian parliament ended on August 7. New Delhi

is likely worrying that if the United States withdraws from Afghanistan and the Taliban

returns to power, Pakistan-backed terror groups might get training in Afghanistan and turn

their attention to J&K.

With the scrapping of the special status of J&K, New Delhi is likely to seek a change in the

narrative around the Kashmir issue, altering the position it has maintained since the 1972

Shimla Agreement that India and Pakistan should discuss their disputes bilaterally. The

Kashmir dispute may now become a “strictly internal matter” of India rather than a bilateral

issue to be discussed with Pakistan as the second party. It is possible that the Modi

government may now focus on formalizing the Line of Control and International Boundary,

which Pakistan refers to as the Working Boundary, in an effort to render the current

division of territory in Kashmir non-negotiable. India’s Defense Minister Rajnath Singh’s

recent comments suggested this shift is taking place when he said that any future talks with

Pakistan will be on Pakistan-administered Kashmir only. This apparent change in India’s

narrative may call for strong responses from Pakistan.

As such, it is unsurprising that Islamabad has intensified its diplomatic offensive to garner

international support on the Kashmir issue, including expelling the Indian High

Commissioner in Pakistan, stopping crossborder trade with India, and initiating outreach

to China, the United States, the United Nations, and the Organization of Islamic Cooperation

(OIC). These diplomatic overtures risk the internationalization of the J&K issue for India.

However, New Delhi’s main concern remains the ability of the Pakistani military

establishment to use terror groups such as Jaish-e-Mohammed, Lashkar-e-Taiba, and

Kashmir-based Hizbul Mujahideen to create unrest in J&K. Understanding the gravity of the

situation in Kashmir and possible civilian unrest in the aftermath of the decision, India’s

National Security Adviser (NSA) Ajit Doval is camping in Srinagar and travelling to different

parts of the Valley to assess circumstances on the ground. Tensions on the Indo-Pak border,

new militant recruitments, and social media warfare between India and Pakistan may

intensify in the coming weeks.

THE LEGAL TANGLE

What is the current status of Article 370 ?

It remains ,but is toothless . One of its own provisions – clause 3 – was used to make it

inoperative. A statutory resolution by Parliament recommended that the President declare

all clauses of Article 370 inoperative in the state.

Will J&K have a new Chief Minister ?

J&K is now a union territory like Delhi or Puducherry. It will have a legislative assembly and

the leader of the single largest party or coalition will be chief minister. However , policing

will remain with the Union government.

Can outsiders now buy property in J&K?

As it stands now , yes. Article 35(A) ensured only “permanent residents” are entitled to

property rights along with other provisions . With the deletion of this article , any Indian

citizen from any part of the country will be able to buy property in J&K , take a state

government job and enjoy state benefits such as scholarships . Children of a woman

marrying outside Jammu and Kashmir will not lose property rights . The centre , however ,

is believed to be contemplating laws along the lines of those hill states like Himachal

Pradesh limiting the types of lands outsiders can purchase . Therefore , it is not that easy as

it appears to purchase land in the erstwhile state.

RESPONSE FROM J&K

The recent-most Chief Minister of Jammu and Kashmir, Mehbooba Mufti called it the

"blackest day of Indian democracy". She felt that the Indian Parliament snatched away

everything from the people of Jammu and Kashmir. In a tweet on 4 August 2019, she said

that the decision of Jammu and Kashmir leadership to reject two-nation theory in 1947 and

align with India had backfired. Former chief minister Omar Abdullah called the

government's move on the Article 370 "unilateral and shocking". He deemed it a "total

betrayal of the trust that the people of Jammu and Kashmir had reposed in India when the

state acceded to it in 1947". Asgar Ali Karbalai, former Chief Executive Councilor of Kargil's

Hill Development Council, said people in Kargil considered any division of the state on the

grounds of "religion, language or region" as undemocratic. Certain religious and political

organisations in Kargil, including the Imam Khomeini Memorial Trust, condemned the

Indian government for acting "without the consent from the people" and called for a general

strike in the Kargil district Kashmiri politician. Shah Faesal denounced the move, saying that

"This is being seen as the biggest betrayal by the Indian state in last 70 years. It was not

possible to reach Omar Abdullah, Mehbooba Mufti, Sajad Lone or send a message to them.

In other districts, curfew is all the more strict. You can say that the entire eight-million

population has been incarcerated like never before."

However , it was reported that celebrations had taken place in Jammu with people

distributing sweets, dancing and playing drums. Representatives of the Kashmiri Hindu

community, who were displaced from the Kashmir valley as a result of on-going violence

welcomed the move and hoped that members of their community, numbering between

300,000 and 400,000 people will be able to return .

The day of 15 August was marked by Ladhakh as its “first independence day”. The BJP

meanwhile was in raptures. “Ab desh mein ek vidhan, ek samvidhan aur ek nishaan (One

legislation, one constitution and one flag in the country now) ran the slogan in its party

offices.