The Presidential Order on Jammu and Kashmir (J&K) and the bifurcation of the state into two union territories generated considerable debate in the recent past. Legally, the order added clause (4) to Article 367, changing interpretations of the terms Sadr-e-Riyasat and Constituent Assembly of the State to Governor and Legislative Assembly respectively. Furthermore, the President, in consultation with the Governor of J&K and the exercise of the power conferred to him under Article 370(1), declared that all the provisions of the Indian Constitution should apply to J&K. One of the previous Presidential Orders in 1954 had extended several provisions of the Indian Constitution to J&K, with various exceptions like Article 35A. The current order applies all provisions of Indian Constitution to J&K without exceptions. Furthermore, the notion that the government has scrapped Article 370 holds no legal validity. There is confidence in the Government of India that the current order is secure and will legal scrutiny.
In India, Parliament is empowered by Article 3 to create a new state by separating an existing state or by uniting two or more states. Article 3 states that the President should refer the proposed legislation to the state legislature concerned to express its views. However, the opinion of the state legislature is not binding. For instance, in the case of division of Andhra Pradesh, Parliament enacted the Andhra Pradesh Reorganisation Act, 2014, despite the rejection of the same by the state legislature. During the discussions on the Andhra Pradesh Reorganisation legislation, which resulted in formation of Telangana, live telecast of Parliament proceedings was suspended, galleries in Parliament were emptied and the doors of Parliament were closed.
It should be noted that the movement for a separate state of Telangana demonstrated a remarkable commitment to non-violence and the leaders of the movement never questioned the territorial integrity of India. Not a single family from coastal Andhra Pradesh migrated from Hyderabad fearing for its safety because of the agitation for Telangana. There was neither insurgency nor statewide armed movement in the rest of Andhra Pradesh. Yet, the Union Government was apprehensive as to how the debate in the Parliament may impact the law and order situation in the erstwhile united Andhra Pradesh.
If the Union government in 2014 was concerned about the security situation in Andhra Pradesh, one presumes that similar concerns animated government’s decision in dealing with J&K. In J&K, the dominant elite in the Kashmir valley was often criticised for its reluctance to share political and administrative power with the people of Jammu and Ladakh. There was minimal possibility that the leaders in Kashmir valley would have acceded to the request of bifurcation of the state. Furthermore, unlike Andhra Pradesh/Telangana, militants from across the border often carry out large-scale terrorist attacks and the security environment in J&K is usually defined as “proxy war”. Given the geopolitical context defined by terrorism, the Union government decided to bring in the J&K reorganisation legislation overnight.
For over seven decades, Article 370 has been a subject of intense debate in India (including J&K). On the surface, there was minimal consensus across the political spectrum on the provisions of the Article. However, even the earlier ruling dispensations found the Article to be constraining and it is precisely for this reason that numerous presidential orders were issued diluting the provisions of the Article. Even within the state, many in Jammu and Ladakh repeatedly argued that Article 370 was being used to maintain and sustain majoritarianism of the Kashmir valley. The unaccommodating attitude of the elite in the Kashmir valley led to a growing opinion on the need to dilute the autonomous provisions. The legislation for bifurcation of J&K received over two-thirds majority in both houses of Parliament. Various parties such as Bahujan Samaj Party and regional parties (such as Telugu Desam Party, Biju Janata Dal, Telangana Rashtra Samithi) have supported the legislation. Nevertheless, challenges remained at the state level. However, as in the case of Telangana, at the state level, an agreement/consensus on the way forward proved to be elusive.
The objective here is not to critique the performance of the previous United Progressive Alliance (UPA) government, in matters of state formation, by contrasting it with the approach of the current government. The intent here is to drive attention to an important question: When an ethnic majority in a province/state is unwilling to share political and administrative power with other ethnic groups and is reluctant to give consent for the formation of a new state, should Parliament let the unjustified situation continue eternally? Alternatively, should Parliament intervene and make a decision based on the broader principles of justice? It is to address such instances of regional discrimination that the framers of the Constitution have empowered Parliament to create new states/union territories under Article 3, even without the consent of the state legislature concerned.
It is essential to locate the recent developments in J&K on the larger canvas of state reorganisation in India. In the coming days, the challenges to federalism will come from the unwillingness of dominant groups, which control state governments/state legislatures, to share power with other minority groups. As a consequence, there will be increased demand from sub-regional ethnic groups for creation of new states. Parliament will be placed in an unenviable position of redressing the grievances of minority groups within various states as has happened in the case of J&K. Sub-regional ethnic demands for share in political power could be satiated if urban/rural local bodies are empowered, as envisaged in 73rd and 74thconstitutional amendments with funds, functions and functionaries. Sadly, as in the case of J&K until recently, many state governments are yet to strengthen representative institutions at the grassroots. The recent developments in J&K point to the imperative of critically evaluating the role of state governments in strengthening grassroots democratic processes.
(Sanjay Pulipaka is a Senior Fellow at Nehru Memorial Museum and Library (NMML), New Delhi. Rakshit Mohan works as Research Associate at Vision India Foundation, New Delhi. Views expressed in this article are personal.)