Abrogation of Article 370 – The Reignited Debate
“India revokes special status for Kashmir.” This is what CNBC’s article stated on August 5, 2019.  It mentioned that the Indian Government decided to scrap Article 370 , a constitutional provision that provided special status to Jammu and Kashmir and allowed the state to have its own laws. Article 35A that defined the “permanent residents of the states” giving them special rights and privileges also got revoked. In addition to this, ‘The Jammu and Kashmir Reorganisation Act, 2019’ was passed to reconstitute the state into the Union Territories of Jammu and Kashmir and Ladakh.  All of this had always been a burning issue across the political spectrum and the sudden revocation thereby stirred controversies not only in India but in the outside world also. The supporters of the initiative reckon that the move realizes Bhartiya Janta Party’s campaign promise. Critics, on the other hand say that it’s a move towards majoritarianism. The move has been commended on the external front as they consider that it takes benefit of Pakistan’s current situation wherein it has its focus on the western front and in the Afghanistan. Also, the issue of Kashmir, due to the initiation has been made a subject matter of internal dispute and not something that is disputed with Pakistan. Critics, however do not consider the matter to be closed as a source of international dispute. To them, giving Jammu and Kashmir a status of Union Territory and cutting Ladakh from the same does not simply seem to be enough to pacify the situation. They consider it a matter of time only for Pakistan to renew the conflicts in the already tensed region and make it presence felt all over again. This project aims to go into the intricacies of the revocation of Article 370 and seeks to come up at the possible impacts it may lead to in the near future. This project will encompass a detailed analysis of the move by giving equal weightage to both the pros and the cons.
The objective of the upcoming discussion is to analyse and understand with clarity, the intention of the government to revoke Article 370 and Article 35A amidst escalating tensions in the region and also to list out and analyse the possible consequences it might have on the socio-economic development of the state as well as how it will affect the people of the state. Therefore, some questions on which we will be pondering over are:
- What is the background of the state of Jammu and Kashmir and how has been the situation there over the course of years?
- What are the legal aspects that concern this move and how valid is it constitutionally?
- What has been the criticism of Article 370’s presence in the Indian Constitution for such a long period of time?
- What positive and negative consequences could this move bring along?
Discussion and Analysis
I. Backdrop of the Situation
Jammu and Kashmir is a state to the north of India and a part of the larger area of Kashmir that is a matter of dispute between the countries of Pakistan, China and India. Article 370, introduced in 1949, bestowed upon the Indian state with the power to have a state flag, a separate constitution and autonomy to control its internal administration without much involvement from outside. Jammu and Kashmir’s constituent assembly, when it was established, was asked to specify the articles of the Indian Constitution that would apply to the state or to recommend withdrawal of Article 370. Following this, a presidential order was issued in the year 1954 after consultancy with the constituent assembly of the state. The order specified the articles that would apply to the state. The state’s constituent assembly, later on, dissolved on its own without suggesting upon the revocation of Article 370 which thereby made the article a permanent characteristic of our constitution. When we read this article along with Article 35A, it came out that the residents of the state of Jammu and Kashmir lived under separate laws which encompassed ownership of property, citizenship and fundamental rights. Jammu and Kashmir has always been considered an inseparable and integral part of India by the Hindutva Organisations since the partition of 1947 on religious lines. On August 5, 2019, BJP fulfilled its poll manifesto as a presidential order was promulgated thereby extending all the provisions of the Indian Constitution to the residents of Jammu and Kashmir. A further notice issued on August 6 declared all the clauses of Article 370 except for the 1st clause as in-operative.
II. The legality of the Move
The Supreme Court of India had ruled in April, 2018 that Article 370 needed to be considered permanent because the constituent assembly of the state was no more in existence. Therefore, in order to surpass such obstacle, the Bhartiya Janata Party Government instead declared the Article as inoperative thereby implying that it is still in existence in our constitution. The Presidential Order of August 2019 extended applicability of all the provisions of the Indian Constitution to the state of Jammu and Kashmir. Thus, it meant the abrogation of a separate constitution of the state and a single constitution for the whole of India. Ramnath Kovind passed the order with the due concurrence of the government of the state which actually meant concurrence of the governor because the President’s rule was in place at the time of order. The third clause of Article 370 led to the promulgation of order. It gave the authority to the President to hold the Article as inoperative with some minor modifications and exceptions if there is a recommendation by the constituent assembly of the state to do the same. To overcome the issue of there being no constituent assembly in the state, the president used the power under Article 370(1) that bestowed on him the authority to modify the Indian Constitution with respect to matters related to Jammu and Kashmir. Therefore, in the process, a new interpretation clause got added in Article 367. ‘Constituent Assembly of the State’ got replaced with the ‘Legislative Assembly of the State’. There being a suspended legislative assembly, the order therefore referred to the governor. Amit Shah, in the Rajya Sabha intimated the President about the necessary formalities for the revocation of Article 370. August 5 saw the bill for the reorganisation of the state and the statutory resolution for special status’ revocation being passed in Rajya Sabha. On the other hand, Lok Sabha passed the motions on August 6 finally de-operationalising Article 370. Many a petition came to the Supreme Court challenging the abrogation and the bifurcation into union territories, therefore a 5 judge bench got constituted for hearing all the petitions. The notices were issued by the court to the government seeking a reply to the petitions ignoring all the government pleas that expressed concern over citation of the notices in the international organisations such as United Nations which may be used later on against India. 7 days were given to the government for the reply to the petition which aimed to end restrictions related to communication and other facilities. The petitioners demanded an injunction against a division of the state into Union Territories but the same was denied by the court. This therefore led to the formation of the two union territories of Jammu & Kashmir and Ladakh on October 31, 2019. Delhi Advocate Rahul Kumar was quoted as saying that once the fresh elections conclude, newly constituted state’s legislative assembly of Jammu & Kashmir would come into existence and the new house will be the product of Reorganisation Bill that has been passed by the parliament. The legality of changes to Article 367 and the presidential order passed under Article 370(3) would finally be determining the fate.
III. Criticism of Art. 370
President Ramnath Kovind was quoted as saying that the changes would be extremely beneficial to the people of Jammu & Kashmir and Ladakh. It has been said that the people of Kashmir also will get to enjoy the same facilities, privileges and schemes as the people from rest of India take advantage of. The innocent Kashmiri people think that article 370’s revocation would prove to be disastrous but in actuality, the argument is a forge just to prevent Kashmiris from entering into the mainstream. The power holders in the valley, in this manner keep on exercising their vested interest by exploiting the gullible. Article 370 had always been used by the powerful people to ensure that no legislation concerning finance comes into the state and they keep on looting the public wealth. The rich got richer and the poor remained poor as a result of the continuous exploitation and hardships faced by the downtrodden weak section. The contended article also facilitated the creation of elite powerful people. Because of the reason that no outsider was allowed to purchase property and settle in the state, the locals with connections in politics emerged as the real winners. Since outside competition is prohibited, these elites would set the prices and control the market. Thus, a separatist mentality was deliberately created in the people of Kashmir and these powerful sections would even go on to the extent of blackmailing India. The misuse of Art. 370 extends to the oligarchs there who do not allow any democratic legislations to come into place and thus keep on flexing their power. Anti-Defection law, for e.g., is really important to prevent defections. The power to determine defection on the part of a legislator is in the hands of the speaker in actuality, but in Jammu and Kashmir, such power lies in the hands of party chief, which in turn gives the leader status of a dictator. At the same time, Article 370 has often been used to snatch away the economic portion of Ladakh and Jammu regions. It used to be a matter of concern as the provision of Art. 370 meant for the good of all the residents of the states were misused by the people of one region to deny the rights of people of other regions. Also, the law proved to be discriminatory against the rest of India because the Kashmiris would automatically become the citizens of India but the Indians would have no such rights with regards to their citizenship of the state.
IV. Possible Impacts of the Abrogation
The abrogation of article 370 will welcome people from any part of India to purchase property there which is indeed really important in the integration of Kashmir with the rest of India. Though the same has been feared by the Kashmiri as they think that this will change the state from a Muslim Majority one to a Hindu Majority area. The Ladakhi people have always felt excluded from the rest of the state as they never got their share of what they deserve thus a long pending demand was from their side to give them a status of a Union Territory. The same has been finally fulfilled as Ladakh is now a union territory without legislature and can meet its aspirations. One more crucial part is that the Indian Constitution will now be applicable in the state and not their own constitution. The promulgation by Ramnath Kovind superseded the 1954 Constitution that was in place. Coming to the Indo-Pak relations, the move has the potential to further complicate the already strained strings. In case the USA calls back its troops from Afghanistan and the Taliban again comes back to power, Pakistan based terror groups might start getting trained there and pose a threat to security in Kashmir.
Modi Government took a risky step by abrogating Article 370 and Article 35A along with demarcation of the state into union territories. The step has the potential to yield some really good results for the state and for India as a whole. The fears of Kashmiris that the state would turn into a Hindu majority state, in my opinion will not hold true. I think that the industries that are going to be set up in the state will provide employment to the jobless youth. Thus, they will have better prospects to grow and prosper in turn providing employment to more people in their business initiatives. As a result of all this, the Kashmiri Muslim youth will start contributing more to the economy of the region and consequently grow in number as they won’t engage in petty stone-pelting activities. I also feel that this move is going to instil a sense of national pride in Kashmiris who could now consider themselves to be ‘Proud Indians’. Coming to the constitutionality of the move, I feel that not taking consent of the people before taking such a big decision could be an issue to think about. In a democracy where will of the people holds utmost importance, not taking into account people could be a big problem.
Apart from all of this, one worrisome situation could be a terror attack by Pakistani groups in Jammu & Kashmir or in any other part of the country. The same may lead to tensions between the militaries of the two countries thus giving rise to a situation of war. Additionally, as there are chances of unrest and disturbances among locals, the government needs to quickly build mechanisms to address ground-level concerns and develop confidence among people of the state. This also must include development of understanding between the different regions of Jammu & Kashmir
NAME- HARDIK BATRA
COURSE – BA LLB (Hons.) COLLEGE- The W.B. National University of Juridical Sciences, Kolkata
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