On 5th August 2019, the Home minister of India, Amit Shah proposed two bills in the Rajya Sabha (Upper House) in the Monday sitting of the Parliament. The first bill contained the proposal to abrogate all provisions of Article 370, which guaranteed Special Status to the state of Jammu and Kashmir. And the second bill proposed to divided Ladakh and Jammu and Kashmir into two separate Union territories, Jammu and Kashmir with the Legislature and Ladakh without the Legislature [1]. It is an action of the Government with the intention to merge the State of Jammu and Kashmir with India. The proposal of these two bills by the Government led to massive chaos by the opposition party in the Sabha. A massive outburst was also witnessed on social media, the citizen of the County had mixed reaction towards the proposal of the Government.
It is necessary to put light on the history of the State of Jammu and Kashmir and understand the circumstances under which Article 370 of the India Constitution [2] was brought in existence, before drawing any conclusion about the recent action of the Government.
The Kashmir problem isn’t a day or year old; it arose way back during the time of Independence of India from the British, the situation was such that the whole state occupied by the Britishers was to be divided into two major dominions i.e. India and Pakistan. Kashmir with two other states, Hyderabad and Junagarh wanted to remain independent. Where Junagarh and Pakistan were merged to India by Sadar Patel, the matter of Kashmir was taken up by Jawaharlal Nehru, which proved to be a fatal blow for the newly born republic. [3]
In October 1947, the Kashmir was attacked by Pakistani tribal, during that time Raja Hari Singh ruler of the state who chose to remain independent and neutral and not merge with either of the dominion during Independence asked for help from then Prime Minister of India, Pandit Jawaharlal Nehru, who agreed to help him conditionally. On 26th October, 1947 the Instrument of Accession (IOA) was signed by Maharaja Hari Singh, as a result of which the provisions of Article 1 and Article 370 of the Indian Constitution was only applicable to the State of the Jammu and Kashmir. The Central Government has power to take decision about the state, only on three areas by itself i.e. Defence, External Affairs and Communications; except these three any decision to be taken which includes the state of Kashmir, concurrence of the State
Government was made mandatory. These three areas are actually among those six provisions embodied in Article 370 for the state of Jammu and Kashmir. Through Clause 5 of the IOA- Instrument of Accession, the Maharaja Hari Singh made it vibrant that the terms accession cannot be varied by any further amendment of the Act or of the Indian Independence Act unless such amendment is accepted by Maharaja by any supplementary Instruction. This war between the state of Kashmir and the Pakistani Tribal not only gave birth to the Article 370 but also another famous term POK- Pakistan Occupied Kashmir, which is basically that region of the Kashmir which was occupied by the Tribal when the war was called off by Nehru, and is still with Pakistan.[4]
IOA- Instrument of Accession which was signed by Maharaja Hari Singh of the State of Jammu and Kashmir; was a temporary settlement according to which the Sate gave authority to the Country to handle the defence, foreign affairs and communications. Which in return gave birth to Article 370 of the Constitution of India, it provided special status to the state of Jammu and Kashmir, due to which it has separate law, separate Constitution, flag and Prime Minister for the state. Even its introduction in the Indian Constitution by the members of Constituent Assembly was with the motive that its existence would be temporary in nature.
The relationship created after signing of IOA- Instrument of Accession, by the ruler of state of Jammu and Kashmir and the Union of India was exceptional. While the power of the Union of India was restricted upon the state of Jammu and Kashmir, the state enjoyed greater autonomy. India was incompetent to declare financial emergency or emergency in a situation where the Constitutional machinery has failed in respect to the State of Jammu and Kashmir. The only emergency for which India was capable was in situation of War or External Aggression because it fell within the ambit of Defence, which was under control of the India.[5]
Another Article which emerged as a result of the agreement signed between the ruler of the state of Jammu and Kashmir, was Article 35A; it was also abrogated with Article 370 by the present Government of India.
Article 35A gave authority to the state assembly of Jammu and Kashmir to define ‘permanent residents’ of the state, and also gave right to the assembly to alter the definition of the permanent resident by two-third of the majority. As per the Article, a non-resident of Jammu and Kashmir doesn’t have any right to own any property in the state or vote in the State Legislative Elections or apply for a Government Job. This Article has historical significance, as there had always been laws in the State for preventing the delectable land of the state from the outsiders.
Utilising the power given to the Legislative Assembly of the State of Kashmir under the Article 35A, the word ‘Permanent Resident’ was defined, as a person who was a state subject on May 14, 1954 or who had been a resident of the state for 10 years or more and has “acquired the property lawfully”. There has been a lot of controversies regarding the definition of permanent resident in the State Constitution. It has always been biased towards men of the State. Even after the October 2002, landmark judgment of Jammu and Kashmir High Court, the women weren’t able to attain equal status as that of the man. It gave status of all rights, including right to property under Article 35A, to the daughters of a permanent resident even after marrying a person not having permanent resident. But the Judgment was nowhere clear regarding the status of offspring of female state subjects married to a non-state subject.[6]
After the presentation of the bill by the Home Minister Amit Shah, one of the major questions raised by opposition in Parliament was that the action of the Government to abrogate the Article 370 and Article 35A was unconstitutional. But was it actually unconstitutional? It was crystal clear since the introduction of the Article 370 after the IOA- Instrument of Accession agreement signed by Raja Hari Singh that for any amendments regarding Kashmir the ruler’s permission was required. And at the same time the Constitution of India empowers the President to suspend or modify Article 370 but by issuing a prior notice to the Constituent Assembly of Jammu and Kashmir for recommendation, which no longer exists.
The consequences of the action of the Government of India, regarding abrogation of Article 370 and Article 35A, will be like converting the State from Sadr-e-Riyasat (President of the State) to the governor, Prime Minister (of the State of Kashmir) to the Chief Minister and will also lead to extension of the power of Supreme Court of India and the Election Commission to the State of Kashmir. It will also challenge the judgment of the Jammu and Kashmir High Court regarding the Article-35A. [7]
Abrogation of Article 35A will no more prohibit the outsiders from buying lands in the state, due to which the investors can now set up industries, hotels, private educational institutions and private hospitals. Which will lead the citizens to participate in economic activities. This will also allow the already industries present there to employee citizens outside the state which will increase the efficiency n return. Article 370 and Article 35A has always acted as a barrier in the development of the state and has prohibited the citizens of the state from the further opportunities. Not just this but has also given birth to terrorism in the state, which all together led to the situation where the Government of India was enforced to take up all the control in its hand.
After the Presidential Order on August 5, 2019 under Article 370 on the Jammu and Kashmir, a writ petition was filed in the Supreme Court of India challenging the Presidential Order by a lawyer named Shakir Shabir. The petitioner in the writ petition contended that the Central Government has used its power arbitrarily without any constitutional authority. It referred to the decision of Supreme Court in the case of State Bank of India v. Santhosh Gupta [8]. Which held that the President needs the state constituent assembly approval to upheld Article 370 but as the Constituent Assembly no more exists, the Article 370 must attain permanent status under the description of the Article as ‘temporary, transitional provision’ by the Court in the case.
Under Article 329 of the Indian Constitution, Advocate ML Sharma has also moved to Supreme Court challenging the Constitutional Validity of the order passed by the Government. The petitioner contended that the gazette notification of Article 370 and Article 35-A was against the basic spirit of the Constitution and is baseless, but still the case is ongoing and the decision of the Supreme Court is awaited.
National Conference leaders Mohammed Akbar Lone and Hasnain Masoodi have also approached Supreme Court of India challenging the Central Government action which abrogated the special status which was given to the state of Jammu and Kashmir under the Article 370 also regarding the Jammu and Kashmir Reorganization Act, 2019 which led to bifurcation of the state into two Union Territories i.e. Jammu and Kashmir with legislature and Ladakh without legislature.
Conclusion:
In the view of the Author, the Abrogation of Article 370 was a necessary as it was hampering the development of the State and security of the citizen of the State of Jammu and Kashmir as well as India. History of Kashmir make it clear that it was never a part of Pakistan, even if it didn’t merge with India during Independence but was a part of India since beginning, and looking at the temporary nature of the Article 370 it was obvious since beginning that it will be abrogated one day or the other, if not by the present Government then by our elected government in future. The petty situation of state people and increase of terrorism make it important to revoke the Article and take control over the state for the betterment of the people.
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1) Jammu and Kashmir Reorganisation Act, 2019, No.34, Acts of Parliament, 2019 (India)
2) Indian Constitution,1950. Article 370- Temporary Provisions with respect to the State of Jammu and Kashmir.
3) Mr. Yatharth Nath Pathak, Article 370- The Story and the Controversy, Manupatra (MightyLaws.in)
4) A.G. Noorani, Article 370-A Constitutional History of Jammu and Kashmir, Oxford University Press, ISBN:9780198074083
5) A.G. Noorani, Constitutional Questions and Citizen’s Rights: An Omnibus Comprising Constitutional, Questions in India and Citizen’s Rights, Judges and State Accountability, Oxford University Press, Oct, 2012, ISBN: 9780195678291
6) Abrogate Article 35A: Mothers in J&K must get the right to fulfil their responsibility towards children, JK NOW Completing India, May 13, 2019
7) Dr. Aman Hingorani, The Effect of Abrogating Article 370, Will it Increase or Decrease the J&K Autonomy?, Live Law (All About Law), Aug 4, 2019
8) State bank of India v. Santhosh Gupta (2017) 2 SCC 538
9) Indian Constitution, 1950, Article 32- Rights to Constitutional Remedies
This article is written by Aparajita Verma.
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