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THE ABROGATION OF ARTICLE 370 IN JAMMU AND KASHMIR: A KAFKAESQUE

Updated: Jul 29

[Authored by Archit Shukla, who is pursuing B.A. LL.B. (Hons.) from National University of Study and Research in Law, Ranchi]

Introduction


The government of Jammu & Kashmir did not accept the newly made Indian constitution as a constitution for itself, even after becoming a part of India, the state is governed by the Jammu & Kashmir Constitution Act 1939. An interim arrangement was made for this state in the constitution of India, article 306-A was introduced and then formally added to the constitution of India as article 370.[1]


The constitution of India came into force on 26 January 1950 and from then onwards the state, Jammu & Kashmir enjoyed a special status if compared with the other states of India. It is Article 370 (article 306 A in the draft) of the constitution of India which provides special and autonomous status to the state of Jammu & Kashmir. Article 370 is drafted in an amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions. It is article 370 which provides a constitutional link between India and the state of Jammu & Kashmir. The parliament is said to be the lawmaker in India but in the matter related to Jammu and Kashmir, the parliament has to take approval from the state while passing any law, ordinance, or an act except in the matters related to Foreign Affairs, Defense, communication and ancillary[2]. Because there’s separate law regarding ownership of property, citizenship, etc. as compared to the other Indian States i.e. why a person from another state cannot buy any property in the state of Jammu & Kashmir.[3]


Financial Emergency under article 360 can never be imposed in the state of Jammu & Kashmir by the Centre under article 370. War or external aggression is the only situation in which the Centre can declare emergency in the state of Jammu & Kashmir. This means that the union cannot declare an emergency in the state if there’s any internal disturbance but can declare an emergency if there’s any imminent danger with the request made to the running state government.

Article 35(c) of the constitution of Jammu & Kashmir, Constitution order, 1954, had given protection to any law relating to preventive detention in the state against invalidity on the ground of violation of Fundamental Rights as guaranteed by the Constitution in part III for 5 years.[4]


The Abrogated Article 370 in the Indian Constitution


Article 370 provided 6 provisions to the state of Jammu and Kashmir:


1. The state is exempted from any other laws of the constitution provided for the governance of the states.

2. The Parliament’s legislative power over the state of Jammu and Kashmir is subjected to three subjects- external affairs, defense, and communications.

3. If the Centre wants to extend other constitutional provisions or union powers in the state, Centre has to take the prior concurrence of the state of Jammu and Kashmir.

4. The concurrence received has to be ratified by the State’s Constituent Assembly.

5. The authority of the state government to give concurrence lasts only when the state’s constituent assembly is convened.

6. Only the President is empowered to make an order amending or abrogating it. The amendment under 368 would be applicable only when it is applied by the order of the President.


The Revocation of the Special Status


The Kashmir Valley was placed under a virtual lockdown with all communication lines cut and political leaders placed under house arrest. Indian President Ram Nath Kovind issued an order under the power of Article 370, overriding the prevailing 1954 Presidential Order and nullifying all the provisions of autonomy granted to the state. The Home Minister Amit Shah introduced a Reorganization Bill in the Indian Parliament, seeking to divide the state into two union territories to be governed by a lieutenant governor and a unicameral legislature.[5]


The resolution seeking the revocation of the special status under Article 370 and the bill for the state's reorganization was debated and passed by the Rajya Sabha – India's upper house of parliament – on 5 August 2019 with 125 (67%) votes in its favor and 61 (33%) against it. On 6 August, the bill for the reorganization was debated and passed by the Lok Sabha – India's lower house of parliament – with 370 (86%) votes in its favor and 70 (14%) against it, and the resolution recommending the revocation was passed by 351 votes in favor and 72 against.

The Indian Government justified its action by saying that this will help end violence and militancy in the state and enable people to access government schemes such as reservation, right to education, and right to information among other schemes.


However, international human rights groups condemned the revocation resolution. In contrast to it, the Hindu nationalists celebrated, stating that this "could bring peace and investment" to this region. The move was also supported by many major regional parties, who typically opposed Hindu nationalism and the BJP. Jamiat Ulema-e-Hind, a prominent Muslim organization in India, also supported the decision. The Buddhist community in Ladakh – the eastern region of Jammu and Kashmir – also supported the decision, stating that they have been long ignored and now they can be "owners of our own destiny".[6]


The changes that will be brought to the state when the article is revoked: -

1. The dual citizenship given to the people of this state will be removed.

2. The state will have to abandon its flag and accept the Indian flag.

3. They will have to respect the national flag and national symbols, as currently, it was not a crime in Kashmir if we insult the Indian flag or symbols.

4. Orders of SC will be valid in this state as well.

5. Parliament of India will be able to make laws regarding more subjects as compared to now on only three (Defense, external affairs, communication).

6. The right to information and the right to education will start to be applicable.

7. Comptroller and auditor general (CAG) will start to apply.

8. Shariat law will be revoked.

9. Outsiders will be able to own property in Kashmir.

10. Panchayats have no authority in Jammu and Kashmir.


The Arguments


In Favor:


1. While signing the instrument of accession it was said that the people of the state, through their own constituent assembly, would determine the internal constitution and the nature and extent of the jurisdiction of the India union over the state, hence it goes against the spirit of commitment that the government of India made, and will lead to a lot of unrest and polarization.

2. India being the world’s most exemplary democracy will spoil its image and would be portrayed as an aggressor in the global community if it fails to abide by the UN resolution 5th Jan 1949 which stated that the accession to India will be decided by a fair and impartial plebiscite.

3. Abrogating this article will only create unrest and law and order problems and hence no investor would invest in a problematic environment.

4. Countries like Pakistan will get an opportunity to renew jihad from their land with more energy.


In Against:


1. The state will be benefitted from the central government schemes, especially for the underprivileged people.

2. The infrastructure of the state would be improved; employment would be generated because of the schemes like MNREGA.

3. Development because of the investment that would be generated because of the peaceful environment.

4. Growth and prosperity will lead to decreased incidents related to militancy and natural resources can be explored.

5. Also, the points stated above that what changes will come if this article is abrogated will help in the development of the state.


Conclusion


In scrapping the Article from the Indian Constitution, the BJP government has taken the right steps to removing this article. There may be many arguments supporting the article 370 if we think upon the above-stated changes as if the article is revoked, we can see that this article in every sense acts as a huge barrier between the relationship of the Kashmiri people and Indian people, in the name of this article people are deprived of their rights which they are guaranteed by the constitution. The day article 370 is removed, the Kashmir problems would be solved, all the problems that Kashmir is facing is due to the poor administration of the state, since a very long time it has been granted this special status and it has done more harm than good, bringing this state completely under Indian union will help in the proper administration of this state. This article is one of the reasons for the separatism between India and Jammu and Kashmir.

[1]No Policy Change on Kashmir, The HINDU, (Aug 9, 2019). [2] Aditya Shuka & Sumit Mishra, Article 370, An Advantage or a Disadvantage. [3] Id. [4] Sampat Prakash v. State of Jammu & Kashmir, 1969 A.I.R 1153 (India). [5] Jeffrey G, India Revokes Kashmir's Special Status, Raising Fears of Unrest, The N.Y. TIMES, (Aug 5, 2019). [6] Sachdev V, Unacceptable Incident': MEA on Indian HC Vandalism in London, The QUINT, (Sept 4, 2019).

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