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ABROGATION OF ARTICLE 370 AND IT’S CONSTITUTIONAL VALIDITY

Author: Shaily Garg, IV year of B.Com.,LL.B(Hons) from University Insitute of Legal Studies Panjab University , Chandigarh.


Introduction

On 5th August 2019, the Union Home Minister of India, Shri Amit Shah, proclaimed the abrogation of Article 370 and Article 35A of the Indian Constitution.


The Indian Government sought to arrest a thirty-year insurgency with an unprecedented change to the country’s constitution to revoke autonomy provisions for the state of Jammu & Kashmir (J&K), split it into two parts, and downgrade both from the statehood to union territories, i.e., Jammu & Kashmir (J&K), with legislature and Ladakh, with no legislature.


The revocation of Article 370 was approved by an “overwhelming majority” of support in the Indian parliament. It had attracted not only the support of the Hindu nationalist parties such as the BJP but many other Indian political parties that typically oppose the BJP. Since then, a consequential crackdown on political and civic freedoms in the Kashmir Valley has unsheathed substantial international scrutiny.


The sudden unilateral change in Kashmir’s condition may be one of the most consequential developments in the region since the 1989 outbreak of insurgency or the 1998 nuclear tests by India and Pakistan, warranting some systematic perusal of what brought India to this point and the region’s plausible future. However, that was a very significant step when it comes to managing ‘things’ in the valley and would have grave consequences for future generations as well.


What is Article 370 and Article 35A?

Article 370

  • Article 370 was formulated under Part XXI (Part 21) which deals with “Temporary Transitional and Special Provisions” which gives special status to the state of Jammu & Kashmir. The article came into effect in 1949.

  • All the provisions of the Constitution which apply to other states do not apply to Jammu and Kashmir until and unless the State legislative assembly separately passes such a provision.

  • Except for defence, foreign affairs, finance, and communications, Parliament needs the State government’s concurrence for applying other laws.

  • The residents of the state of Jammu & Kashmir live under a separate set of laws, including those related to :

  • Citizenship

  • Ownership of property

  • Fundamental Rights

  • The Directive Principle of State Policy and Fundamental Duties do not apply to the state of Jammu & Kashmir.


Article 35A

  • Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state legislature to determine “permanent residents” of the state and provide special rights and privileges to those permanent residents.

  • It was enumerated in the Constitution through a Presidential Order. i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the president of India on 14 May 1954, under Article 370.

  • The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, the ability to vote and contest elections, seeking government employment, and availing other state benefits such as higher education and health care.

  • Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges.

  • It was issued by former President Rajendra Prasad under Article 370.


Constitutional Validity

Article 370(3) provides that via a presidential order the entire article can cease to be operatively provided that a recommendation is made by the Constituent Assembly of the State. This is where the addition to Article 367 comes in. It changes the words “constituent assembly of the state” to “legislative assembly of the state.” The government has then deemed that as the state assembly presently does not exist, under the governor’s rule, the recommendation of the governor would be analogous to the recommendation of the legislative assembly to approve.


However, the question was whether a modification to Article 367 can be done in this modus operandi, and if so, whether the governor, as a representative of the president, can substitute an elected legislative assembly for giving consent to cease operation of Article 370. These are going to be the biggest legal hurdles for the Indian government. Several petitions have been filed in this matter by private individuals, organizations, lawyers, activists, and political parties, and they have also challenged the Jammu and Kashmir Reorganisation Act 2019, which divides J&K into two union territories – Jammu and Kashmir and Ladakh.


The newly formed legislative assembly of the Union Territory of Jammu & Kashmir will come into being once fresh elections are held, and the house will be a creature of the reorganization bill passed by parliament. Its destiny would depend on turn upon the constitutionality of the alteration to Article 367 and presidential order under Article 370(3). We can be certain about one thing: the legality of the presidential order is purely a domestic issue with no room for any international law dispute.


Bifurcation makes political, administrative, and governance sense. There has been a longstanding behest in Leh for giving Union Territory status to Ladakh, although there may be some displeasure in Kargil at being locked out of J&K. Separating J&K, plainly along religious lines, would have appeared a tacit endorsement of the two-nation theory, which was earlier unacceptable to India.


The formal abrogation was followed by months of mass curfew, communications blackouts, and the detention of hundreds of state political figures because to avert unrest in the state and prevent protests, the government subsequently cut landline, mobile, and internet communications, and political leaders and activists were apprehended under the Jammu and Kashmir Public Safety Act.


The revocation of article 370 had faced many legal challenges, according to lawyers and legal experts. First, there was doubt as to whether the concurrence of the government of the state of Jammu and Kashmir had been received. For the past year, the state has been under direct presidential rule under article 356 of the Constitution after the BJP withdrew from an alliance with a regional party and the state assembly had been dissolved by the Governor of the state. Additionally, the Presidential Order 272 amounts to the Central Government taking its consent to amend the Constitution. Another objection is that article 370(1)(c) prevents the president from using his power of amendment in the Constitution (as applicable to Jammu and Kashmir) to amend article 370 itself, even if it is done indirectly. The normal amendment procedure under article 368 would have to be employed.


Benefits of Abrogation of Article 370

Finally, it is the One Nation, One Constitution. This will not only instill a feeling of unity among all citizens of India but will also open doors for private sectors to invest in Jammu and Kashmir. This will stimulate growth and employment leading to prosperity for all. The industrialization of the state will proliferate job opportunities for local youth.


Local horticulture and food processing will get a big boost and the handicraft industry which was earlier limited to selective destinations will now be able to directly export and collaborate both nationally and internationally. Overall, this will spur the economy of the State. The tourism potential of the entire region is immense, and the investment in tourist infrastructures such as hotels and other facilities will increase tourist arrivals.


There will be an increase in film shootings, adventure tourism, and religious tourism. The Centre will be able to provide better medical and educational facilities to citizens of Jammu and Kashmir now. World-class health care providers open their franchises and health centres to bring top-quality health care right at the doorsteps of people. Appropriate measures to control corruption can be taken now by the central government and authorities are in a better position to curb terrorism now.


Property and all other rights of women marrying outside the State will now be fully protected, and they will now retain full and legal rights on land and all other rights. All Central Acts and Laws protecting the rights of women and children to be made fully applicable to the State. The right to Education shall be extended to J&K to guarantee universal education coverage.


The Commission for Protection of Child Rights Act, 2005 will now be applicable here and will corroborate adequate protection of women and child rights. Scheduled Tribes will now get political representation through reservation in Regional Parliament seats like in the rest of the country. The Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has now been made applicable to the state, and rights of Tribal/ST Communities residing in forests will now be protected.


Any landowner who desires to sell his land would benefit from increased prices. Anyone who does not want to sell his lands will have the full liberty not to part with his land. There will be no alterations in ownership due to the removal of Article 370. West Pakistan Refugees will now enjoy all democratic rights as citizens of the country. They will be provided citizenship and property rights.


Conclusion

The revocation of Article 370 had stained the already delicate relations of India with Pakistan. It has installed fear among a section of citizens about security as many fear that the way Article 370 was revoked, the government might take similar actions in other states and people will have no say. It is a threat to our democracy. Also, certain sections of the society have started threatening that they can now marry Kashmiri girls since they can marry outside Jammu and Kashmir without losing their citizenship.


This is sexist and is a threat to the safety of a woman in Kashmir. Not only that, it has been more than a year for this incident, but still the tourism industry is crippled and the 4G internet is still not restored, J&K’s economy has suffered. While terrorism has considerably dipped, cross-border infiltrations have lifted up and more locals are being recruited for terrorist activities. Hence, it is a grave concern for the Indian Government to take requisite steps to curb these extreme trajectories in the State.