ABROGATION OF JAMMU AND KASHMIR’S SPECIAL STATUS:ARTICLE 370

ABSTRACT

Jammu and Kashmir the most controversial region of India. Fights, stone pelting, war is a common word for this State. But what is the history of this state ? Why does it have a different constitution even after it being a part of Indian Province? Because of Article 370. Article 370 provides special powers to Jammu and Kashmir. What are these special powers and what is the history behind vesting this special status to Jammu and Kashmir? Coming to the main topic, the abrogation of Article 370 which means abolishment of this act will also take away all the special powers vested to the state. There are many things that we can cover in this topic but we would like to brief it down in this paper highlighting the main points. In this paper, we will discuss about the Article, the purpose of the article, summary of the presidential orders, the abrogation and it’s impacts.

Keywords : Article 370, Special Status, Abrogation of the article, Summary of presidential orders

ARTICLE 370

The article was drafted in part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of J&K, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After consultation with the state's Constituent Assembly, the 1954 presidential order was issued, specifying the articles of the Indian constitution that applied to the state. Since the Constituent Assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution. This article, along with article 35A, defined that the Jammu and Kashmir state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu & Kashmir. On 5 August 2019, the Government of India issued a constitutional order superseding the 1954 order, and making all the provisions of the Indian constitution applicable to Jammu and Kashmir based on the resolution passed in both houses of India's parliament with 2/3 majority. Following the resolutions passed in both houses of the parliament, he issued a further order on 6 August declaring all the clauses of Article 370 except clause 1 to be inoperative.

In addition, the Jammu and Kashmir Reorganization Act was passed by the parliament, enacting the division the state of Jammu and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh.

PURPOSE

The state of Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State and that the state's constituent assembly, when formed, would decide on the other matters. Government of India agreed to the demands shortly before the above meeting with the other states. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article was considered to have become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.

Article 370 embodied six special provisions for Jammu and Kashmir, such as:

1. It exempted the State from the complete applicability of the Constitution of India. The State was conferred with the power to have its own Constitution.

2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.

3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.

4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.

5. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalized the scheme of powers and dispersed, no further extension of powers was possible.

6. Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.

Once the State's Constitutional Assembly convened on 31 October 1951, the State Government's power to give `concurrence' lapsed. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished. Article 35A was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations under Article 370 of the Indian constitution.The article permits the local legislature in Indian-administered Kashmir to define permanent residents of the region.It forbids outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region. The article, referred to as the Permanent Residents Law, also bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extends to such woman's children. While Article 35A has remained unchanged, some aspects of Article 370 have been diluted over the decades.Critics of Article 35A say the provision did not have any parliamentary sanction, and that it discriminates against women

A SUMMARY OF THE PRESIDENTIAL ORDERS

The Presidential order of 1950 established specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession as required by the clause b(i) of the Article 370. 38 subjects from the Union List were mentioned as matters on which the Union legislature could make laws for the State. Certain articles in ten of the twenty-two parts of the Indian Constitution were extended to Jammu and Kashmir, with modifications and exceptions as agreed by the state government.

In this first Presidential Order under Article 370 "235 articles of the Indian Constitution were inapplicable to the state of Jammu & Kashmir, 9 were partially applicable, and 29 were applicable in a modified form".

This order was superseded by the Presidential order of 1954.

The Presidential order of 1952 was published on 15 November 1952, at the request of the state government. It amended the Article 370, replacing the phrase "recognized by the President as the Maharaja of Jammu and Kashmir" by "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the abolition of the monarchy of Jammu and Kashmir.

The Presidential order of 1954 came into force on 14 May 1954. Issued with the agreement of the State's Constituent Assembly, it was a comprehensive order seeking to implement the 1952 Delhi Agreement. Arguably, it went further than the Delhi Agreement in some respects.

The provisions implementing the Delhi Agreement were:

1. Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects'). Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.

2. The fundamental rights of the Indian constitution were extended to the state. However, the State Legislature was empowered to legislate on preventive detention for the purpose of internal security. The State's land reform legislation (which acquired land without compensation) was also protected.

3. The jurisdiction of the Supreme Court of India was extended to the State.

4. The Central Government was given power to declare national emergency in the event of external aggression. However, its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.

In addition, the following provisions which were not previously decided in the Delhi Agreement were also implemented:

1. Financial relations between the Centre and the State were placed on the same footing as the other States. The State's custom duties were abolished.

2. Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent of the State Government.

This Presidential Order was adopted based on recommendations

Other than these 47 Presidential orders were issued between 11 February 1956 and 19Ffebruary 1992. They put forth more provisions for the applicability Indian Constitution at J&K. All the orders were issued with; concurrence of the Government of the state’ without any constituent assembly. The effect of the Presidential orders issued since 1954 had been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India

ABOLISHMENT

The President of India 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 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. 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, On 6 August, the Lok Sabha – India's lower house of parliament – debated and passed the Reorganization bill along with the resolution recommending the revocation. The constitutional expert opinion is divided on whether the revocation is legally sound. While the decision was hugely challenged, a statement of home minister that compiled the acts laid down in the article 370 itself stated that, provisions laid down under the act that the act shall be inoperative or can be amended and the President has the right to issue such a notification or constitutional order. The reorganization bill was formed.

HIGHLIGHTS AFTER ABROGATION

The main objective towards the abrogation was to completely end the special status of Jammu and Kashmir and help the citizen join the mainstream population of the nation. It was also said that J&K, which was gripped by the prolonged separatist would become free from them. A single Constitution rule would prevail through-out the nation. The new provisions included right to information act, SC/ST act and those pertaining to domestic violence, will now be implemented there. Social security and right to employment. With the abrogation, Gujjars and Bakharwals can also contest elections. There will be reservations for SC/ST in the Jammu and Kashmir Assembly. The abrogation of Article 370 would also give Dalit the right to join the judicial and administrative services, something which they were not allowed to do previously. There were provisions that Dalit from Punjab who went to Jammu and Kashmir cannot do any work other than being sanitation workers. This was the injustice committed on them. And this they would be provided with all sorts of amenities against exploitation.

GOVERNMENT CLAMPDOWNS

Prior to the abrogation, the home ministry granted the approval for the mobilization of thousands of para-trooper military into the state of J&K, citing the reason to maintain law and order in the state. The whole state was under curfew and a complete shut-down was ordered.Communication service was completely cut-off and the internet, cable TV, land-lines and cell phones. This move was of a major concern as the situational demand could not have been met with any emergency insurgency arising out of sudden. Prior to the 5 August revocation announcement, Section 144 curfew was imposed in the Muslim-majority Kashmir Valley, the Hindu-majority Jammu region and the Buddhist-majority Ladakh region. The current lockdown was far more intense in the Srinagar (Kashmir) region, where "people are used to curfews and living under a heavy security presence", according to The Guardian newspaper. While major leaders like Mehbooba Mufti and Omar Abdullah were put under house arrest, the former chief minister called it ‘blackest day in Indian Democracy’. In a verdict delivered on petitions filed against the restrictions imposed in Jammu and Kashmir, the Supreme Court ordered a review of all the curbs on usage of Internet services. The court pointed out that freedom to access Internet services is a fundamental right as per Article 19(1) of the Indian Constitution. It also noted that Section 144 of India's Code of Criminal Procedure is not to be used for suppressing people's expression, ordering the local administration to publish every usage of that provision to enable its public scrutiny. This not only a drawback but also a flaw in legality. While the social media flooded, major activism was promptly seen in the state.

Several human rights activists and world leaders also commented on their social media accounts about the Kashmir situation. On Twitter, the hash-tags such as #KashmirBleeds became top trends. According to India Today and other Indian media sources, several fabricated images and videos have appeared on social media such as Facebook, Twitter and other platforms. A closer examination of these photos and videos established that these are fabricated propaganda that utilized old photos or videos and the posters misrepresent them to be "current situation in Kashmir".

The international Human Rights group condemned the revocation resolution. The reaction in the Kashmir valley was effectively reduced to silence because of lack of communication. The Amnesty International, NGO for human rights, started an online petition to remove the shut-down of communication. While the United States said, “US hopes to see a rapid action towards the lifting of restrictions and release of those who have been detained. Historian Ramachandra Guha said, “president had acted in haste and revocation was arbitrary miss-use of the state power”. Meanwhile Nobel laureate Amartya Sen criticized the government’s decision.

Parallely leaders like JP Nadda overwhelmingly supported the decision. The Ladakh Buddhist welcomed the government orders. The Indian government justified the action by saying it will end the violence and militancy in the state and enable people to government scheme accessing them to mainstream population.

About Author

PRAJNA PRIYADARSHINI

Pursuing B.B.A LL.B from KIIT SCHOOL OF LAW, ODISHA.