The Bharatiya Janata Party’s stunning victory in the Ladakh Autonomous Hill Development Council, Leh, elections on October 17, winning 18 out of 26 elected seats (four are filled by nomination), provides the Centre an opportunity to test Article 370 and Article 371 of the Constitution of India, to fulfil its promises to the people.
The BJP’s main poll promise was Union Territory status for Ladakh, a long standing demand of the people, which is opposed by the Congress, the National Conference and the People’s Democratic Party. As a result, the Congress, which won 22 seats last time and has dominated the LAHDC for 15 years, was reduced to 5 seats in the recent election. The National Conference had to be content with two seats, while one seat went to an Independent. The PDP, which forms a coalition government in the state with the BJP, failed to open its account.
Soon after the results were declared, former Chief Minister Omar Abdullah attacked Prime Minister Narendra Modi for promising to “dismember Jammu and Kashmir” for the sake of votes in Ladakh. The Congress state unit called the pledge “communal and divisive” and warned that J&K enjoys special status under Article 370; any change would require a Constitutional Amendment by the J&K State Legislature.
Article 370 has long been resented by nationalists. In recent years, citizens in Jammu, Ladakh, and marginalised groups in Kashmir have started grudging the complete domination of a sectarian group based in the Valley. The demand to repeal Article 370 and bring Jammu and Kashmir at par with other States of the Union in finding increasing traction with these groups.
However, with the Jammu and Kashmir High Court exceeding its jurisdiction and declaring Article 370 a permanent feature of the Constitution, the Centre will have to take a call on the continued existence of the clause, and/or how to use it to its purpose.
Union Home Minister, Gulzari Lal Nanda, opined that Article 370 did not inhibit the Centre from extending its writ to the State. He informed the Lok Sabha on December 4, 1964, “Article 370 is a tunnel… a good deal of traffic has already passed (i.e. extension of Central laws) and more will… Article 370 whether you keep it or not, has already been completely emptied of its contents.” The Education Minister, M.C. Chagla, concurred, “Through Article 370, the whole of the Indian Constitution could be applied to Jammu and Kashmir.”
Nanda further pointed out that amendment of Article 370 is very simple and requires only “a Presidential order - a mere executive order.” The President of India using powers vested in him under Article 370 can amend or revoke the clause, whereas normal constitutional amendments involve stringent conditions. Even Sheikh Abdullah stated in the assembly in 1982 that Article 370 was not a divine scripture which could not be removed. Almost all articles of the Indian Constitution have thus been applied to Jammu and Kashmir, or the State has passed identical legislation.
Given political will, Ladakh could become a Union Territory, though the BJP may need supportive legislation from the State Government in which it is a coalition partner. It may be recalled that in May 2014, the BJP won the Ladakh Lok Sabha seat for the first time ever on the promise of UT status. As Congress officially opposed this, its candidate, Tsering Samphel, contested as an independent and promised UT status in his manifesto; the ruse did not work.
Failure to deliver on the promise of UT status could result in deep disillusionment. An alternative could be using Article 371, which empowers the Governors of certain States to exercise special powers and responsibilities and act according to their individual judgment. The Article aims to benefit ignored sections of society and ignored and underdeveloped regions. Beginning with Maharashtra and Gujarat, it has been amended and extended to Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, and Goa. The Fifth and Sixth Schedules of the Constitution grant special provisions to Tribal Areas and the North Eastern States.
Inclusion is Schedule 6 is an important demand of Ladakh, as is the inclusion of Bhoti language in Schedule 8 of the Constitution. The people also want Deemed University Status for the Central Institute of Buddhist Studies; early completion of the tunnelling at Khardung-la; opening a route to Kailash Mansarovar via Demchok; a Central University or Medical College, and a Regional Advisory Council for Leh and Kargil.
A factor in the BJP’s strong showing in Ladakh is the image of Prime Minister Modi as a leader who warded off Chinese incursions into Indian territory, which deprived Ladakhi nomads of their pastures. The intensified Army patrols along the border have raised confidence levels among the people along the remote frontier. The BJP, which is seen as having compromised to form a coalition with the PDP, has a chance to seize the initiative and redeem itself.