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    BlogLegal BlogsArticle 370: A Constitutional History of Jammu & Kashmir!!

    Article 370: A Constitutional History of Jammu & Kashmir!!

    By Ipshita Goyal (CONTENT HEAD & SENIOR EXECUTIVE)

    Article 370 was a medium to integrate Kashmir with India. But When and how this Article came into action and when this all started? So, don’t worry let me explain to you each and every question in detail. We would be covering that what are the arguments in favour of this article and who is against it and why??

    So, let’s start from the very beginning:

    On 26 Oct 1947, The Instrument of Accession was executed by Maharaja Hari Singh. The ruler of the princely state of Jammu and Kashmir. He agreed to endorse the Dominion of India. On 17 Oct 1949, The Indian Constitution incorporated Article 370 which provides Kashmir a Special Status.

    Article 370 embodied six special provisions for Jammu and Kashmir [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.
    • Central legislative powers over the State were limited, at the time of the framing, to the three subjects of defense, foreign affairs, and communications.
    • Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
    • The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
    • 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.
    • Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.

    Understanding the Article 370

    On 14 May 1954, Rajendra Prasad passed a Presidential Order “The Constitution (Application to Jammu and Kashmir) Order, 1954” under Article 370. This Article states as:[2]

    “Saving of laws for permanent residents and their rights.”

    Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

    1. defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
    2. conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
      • employment under the State Government;
      • acquisition of immovable property in the State;
      • settlement in the State; or
      • right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”

    The constitution was adopted on 17 Nov 1956 and came into force on 26 Jan 1957.

    Important Provisions in Law

    Article 370 has a clause, ”Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:”

    Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

    Presidential Order of 2019

    But the point to note is that Constituent Assembly which was being resolved in 1957 which create a deadlock to abolish this Article. On 5 Aug 2019 Home Minister Amit Shah announced that the President of India announced The Constitution (Application to Jammu and Kashmir) Order, 2019 under Article 370 which superseded The Constitution (Application to Jammu and Kashmir) Order, 1954.

    The new Order removed all the restrictions and the Indian Constitution became applicable to all parts of India including the state of Jammu and Kashmir. Presidential Order of 2019 added clause (4) having four sub-clauses under “interpretations”. “Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers” now construed as the “Governor of Jammu and Kashmir“. The phrase “State government” shall include the “Governor”. Clause (3) of Article 370 of the Constitution, the expression “Constituent Assembly of the State” shall read “Legislative Assembly of the State”.

    Immediately after the Presidential Order 2019 Home Minister Amit Shah moved a resolution which recommended that the president issue an order under Article 370(3) for rendering all clauses of Article 370 inoperative.

    On 5 August 2019, Amit Shah introduced the J & K Reorganisation Bill, 2019 in the Rajya Sabha which converted Jammu and Kashmir’s status of a state to two separate union territories, named Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to have a legislature but the union territory of Ladakh is proposed to not have one.

    The two union territories came into existence on 31 October 2019, which was celebrated as National Unity Day [3]

    Now, the question arises that was this decision correct? Will the situation in Jammu and Kashmir be normal or would get deteriorated?  

    Comments on the Article

    Let’s see the comments that support this article!!

    Amit Shah (Union home minister):

    Those who instigate the youth of Kashmir, their own kids’ study in London and the US. Let them educate their kids in the schools in Kashmir Valley then they will know what Article 370 is. These are the people who do not want the youth to progress. The Modi government wants to hug the youths of J&K.” [4]

    “Article 370 alienated the youth of Kashmir and pushed them towards terrorism. It is due to Article 370 that more than 41,000 people have died in J&K.”

    Mayawati

    Former Uttar Pradesh chief minister and Bahujan Samaj Party president Mayawati has supported the Modi government’s decision to scrap special status to Jammu and Kashmir. Mayawati said the BSP hopes that the decision taken by the central government will benefit the people of Jammu, Kashmir, and Ladakh.

    The government of India wants to integrate our whole nation and put Kashmir on the same footing as the rest of India. Non-Kashmiris now could buy land there and students from all over India could apply for a scholarship and government jobs which would give a pace to the economic growth of the region and hence increase employment opportunity and reduce extra-territorial activities in all over Kashmir. The army could easily be deployed in the disputed area of POK. Kashmiris could take benefit of the Scheme of the government i.e. Ayushman Bharat, Right to education, Right to Knowledge, etc. Finally, there will be One Nation One Constitution. The duration of legislative assembly which was earlier 6 years now be 5.

    Who are Opposing this and Why?

    Rahul Gandhi

    “National integration isn’t furthered by unilaterally tearing apart J&K, imprisoning elected representatives, and violating our Constitution. This nation is made by its people, not plots of land.” “This abuse of executive power has grave implications for our national security,”

    Mehbooba Mufti

    She said, “she was not interested in contesting elections or holding the national tricolour till the constitutional changes” “Darkest day… catastrophic”. “Today marks the darkest day in Indian democracy. The decision of J&K leadership to reject the 2-nation theory in 1947 & align with India has backfired. Unilateral decision of GOI to scrap Article 370 is illegal & unconstitutional which will make India an occupational force in J&K.”

    Amartya Sen

    Nobel laureate Amartya Sen criticized the government and said that he was “not proud as an Indian”. [5]

    1. Kashmiri feels that it threatens the state’s unity and integrity. [6]
    2. It implants the seed of insecurity and conflict in certain sections of society.
    3. The implementation of abrogation of article 370 is a threat to democracy. This is an attempt to throw Muslims out of Kashmir and polarize and appease the Hindu population.
    4. This instilled insecurity in the locals as now they have to give away their dual citizenship.
    5. This would hamper their delicate relationship with Pakistan. It is a nail in the coffin.
    6. Add on to political vulnerability and instability in the valley.
    7. Certain sections of the society have started threatening that they can now marry Kashmiri girls since they can marry outside the state of J&K without losing their citizenship. This is sexist and a threat to the safety of the women.

    Situation after the Immediate Removal!!

    Thus now, the media – whether local, Indian, or foreign — are effectively working in a new ecosystem, in which even the pretences of freedom have fallen away. [7]

    A year has passed since the decision, which was justified as “rectifying a historical blunder” and justified as paving the way for prosperity, peace, and development in the region. But on the ground, the change not only divided the parts of the region along communal lines but also gave free rein to the military’s heavy-handed approach. Dissent is the way to peace — turned out to be counterproductive. The BJP opposed any talks with Pakistan, which also claims the region, or pro-freedom leaders, further widening the gap between New Delhi and Srinagar.

    Speaking to The Diplomat, Drabu predicted that the ultimate results of the move will not come out immediately. He cited a Kashmiri adage: “Anyone who eats beans does not show immediate results; the results appear later. “The picture of Kashmir is suffocating. There is anxiety, fear, concern, and uncertainty. I think this is the lowest ever psychological pressure that a Kashmiri is facing today. But it can’t go on forever like this,” he expressed sadly.


    [1]https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India#:~:text=Article%20370%20of%20the%20Indian,and%20autonomy%20over%20the%20internal

    [2]https://en.wikipedia.org/wiki/Article_35A_of_the_Constitution_of_India#:~:text=Article%2035A%20of%20the%20Indian,rights%20and%20privileges%20to%20them.&text=Non%2Dpermanent%20residents%20of%20the,entitled%20to%20these%20’privileges‘.

    [3] https://www.indiatoday.in/india/story/jammu-and-kashmir-bifurcated-ladakh-union-territory-october-31-1614249-2019-10-31

    [4] https://www.indiatoday.in/india/story/article-370-debate-who-said-what-modi-govt-scraps-jammu-kashmir-special-status-1577956-2019-08-06

    [5] https://www.ndtv.com/india-news/amartya-sen-no-resolution-of-kashmir-without-democracy-2087327

    [6] http://www.legalserviceindia.com/legal/article-2568-article-370-and-35a-controversy-the-debate-and-its-impact.html

    [7] https://thediplomat.com/2020/08/a-year-after-article-370s-end-a-dangerous-silence-in-kashmir/


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