ABROGATION OF ARTICLE 370 OF THE INDIAN CONSTITUTION
Author: Sibani Suresh, a student at, Symbiosis Law School Hyderabad
An important clause in the Indian Constitution, known as Article 370, gave the northern Indian province of Jammu and Kashmir exceptional autonomy. It was initially intended to be a transitory clause that would grant Jammu and Kashmir a special status while it was integrated into the newly formed India in 1947. Article 370, on the other hand, was in effect for many years and became a contentious issue. Article 370’s primary goal was to acknowledge the unique circumstances preceding Jammu and Kashmir’s accession to India. The princely states were offered the option to join either India or Pakistan when British India was divided into these two new countries in 1947. J&K’s Maharaja Hari Singh agreed to unite with India in return for a number of safeguards to preserve the state’s independence, including keeping its own constitution and having the final say in all subjects aside from defence, foreign policy, and communications. The numerous ways that Article 370 has been interpreted and altered over time have complicated both its legal standing and the relationship between Jammu and Kashmir and the Indian Union which gave the state a great deal of autonomy, enabling it to have a unique flag, constitution, and extensive power regarding internal issues. The state’s ability to enforce Indian law was likewise constrained by its special position. For the first time, Article 370 was subsumed into the Indian Constitution to acknowledge the special circumstances surrounding J&K’s 1947 accession to India. The resolution was later approved by the Indian Parliament. Jammu and Kashmir’s unique status was effectively annulled by this ruling. Jammu & and Kashmir continue to face political and security difficulties as a result of the decision to abolish Article 370. Periods of increased security, communication limitations, and political landscape changes have been experienced in the region.
PROOFS
Implications On Human Rights:
All Indian citizens, regardless of caste, ethnicity, gender, or religion, should have access to human rights for the benefit of society. The government of Jammu and Kashmir neglected to protect certain basic rights of its inhabitants under Article 370. The constitution of Kashmir fails to address a number of concerns, including discrimination against underprivileged people, women’s inability to marry outside the state to preserve their property rights, and children’s entitlement to an education.
The following are the impacts of Art. 370 in terms of human rights:
- Article 370 condemns the gender biases in J&K. Article 35A addresses women’s rights- it says that those who marry outside the state, lose their property rights. This discriminatory behaviour towards women in Jammu and Kashmir is reproachful and requires a call for justice. Jammu and Kashmir is a backward state. Its citizens, specifically the vulnerable groups do not have access to basic fundamental rights.
- In Jammu and Kashmir, the right to education— which the Indian Constitution recognises as a fundamental right — is neither required nor rigorously enforced. The youngsters that live there are severely hampered in their ability to develop because they lack access to education. Child marriage is still a problem, and the laws intended to stop it fall short in putting an end to it.
- Despite having a smaller territory than other states, the state has the most seats in electoral constituencies, which is unfair and encourages inequality. To ensure democratic administration, every state should have an equal chance to elect representatives from each of its distinct constituencies.
- The Certificate of Permanent Residency is a prerequisite for enjoying special privileges in Jammu & Kashmir. People who have been residing there for many years but do not have such a certificate in their name are not given a right to vote and this violated universal adult suffrage.
This is a clear infringement of human rights under Article 370.
- The right to freedom of movement is not guaranteed to the residents there under the provisions of Art. 370. This violates Article 19 and is therefore against human rights.
Political Effects Of Abrogation:
“The National Democratic Alliance (NDA) government” claims that beginning of August 5, 2019, the “special status” clause of “Art. 370 of The Indian Constitution” for the state of “Jammu and Kashmir,” including the Ladakh region, underwent substantial changes. Removing this unique status will fully merge J&K into India, according to the “Bharatiya Janata Party (BJP).” The attitude of the BJP on the “abrogation” of Article 370 and the “repeal of Article 35A,” which gave the “J&K legislature” the authority to choose who qualifies as a permanent resident of the state, is made plain in the party’s manifesto for the 2019 Lok Sabha Elections. In accordance with the “Jammu and Kashmir Reorganisation Act of 2019,” J&K would be divided into the UTs of Jammu & Kashmir and Ladakh. In anticipation of major civil unrest in the Kashmir Valley when J&K’s special status was revoked, it was decided to offer reorganisation immediately. After J&K is admitted as a Union Territory, New Delhi will probably have more influence over local administrative and legislative choices as well as direct control over the police, public order protection, and protection. When things return to normal and “the right time comes,” Indian Home Minister “Amit Shah” told the parliament, the central government will grant the union territory of J&K full “state” status once more. Two outcomes may result from the “BJP’s decision” to repeal Article 370. First, both the events in J&K and the rest of India could be advantageous for the BJP politically. Second, New Delhi may now be able to aggressively emphasise that the Kashmir issue is a “internal” affair of India in response to efforts at third-party mediation. The administration is aware of the risks, such as the possibility of terrorism and civil unrest in the Valley, racial tensions in J&K, and the internationalisation of the Kashmir problem. Furthermore, it is crucial to make a selection.
The BJP, which is currently in power, presumably felt more at ease making significant internal political decisions as a result of the historic mandate it received in the recently held parliamentary elections. When certain parties backed the government’s initiative to abolish J&K’s special status, it became apparent how weak and fragmented the political opposition continues to be. Others, like the Communist and Indian National Congress (INC) parties, were opposed to it. And last but not least, the BJP government will have roughly five years until the 2024 Lok Sabha elections to stabilise the political situation in J&K and complete the reorganisation process. After “J&K’s special status” was abolished, the BJP saw an opportunity to seize control of newly created the Union Territory of J&K. The administration intends to begin the procedure of defining the “J&K legislative assembly constituencies” in order to hold local elections once the situation regarding peace and order in the Kashmir Valley returns to normal. The boundaries and sizes of the constituencies will be redrawn as a result of the proposed redistricting, which will also determine the overall number of seats allotted in J&K for the Scheduled Castes, who belong to the lowest caste hierarchy in India. The new constituency plan may assist the ruling party electorally given that Jammu, the BJP’s stronghold in J&K, may wind up with more seats after the delimitation process is finished. The BJP would then stand a solid chance of electing the chief minister and forming the next J&K administration. If the BJP “cannot win enough seats to rule from Jammu through the delimitation process,” it may seek aid from a party with roots in the Kashmir Valley to create a coalition government. The BJP is conscious of its shaky political clout in the Kashmir Valley, where a significant portion of the population opposes abolishing Article 370. It is unlikely that “The National Conference (NC)” and “The People’s Democratic Party (PDP),” the two most well-liked political organisations in Kashmir, will cooperate with the BJP following the recent incarceration of their top leaders, Omar Abdullah and Mehbooba Mufti, both former chief ministers of the “state of J&K.” The Valley’s potential for a cohesive opposition may also reduce the likelihood that the BJP will dominate the “new Union Territory.” Worst-case scenario: “Kashmir-related parties” may choose not to participate in “legislative assembly elections to protest the repeal of Article 370.” Nonetheless, the BJP’s political influence in India will grow if Article 370 is repealed. It will be a topic of political debate for the upcoming state and 2024 Lok Sabha elections because of widespread support from different locations. When it comes to the upcoming state and parliamentary elections, the opposition parties may opt to unite against the BJP if the process of unity fails. This might have long-term political ramifications for the party in power.
SIGNIFICANT JUDGMENTS AND LEGAL CHALLENGES
Pakistan’s stance on the abrogation:
As evidence of its position, Pakistan has declared that it cannot accept the repeal of Article 370 and asserts that doing so would violate a UN decision. The temporary nature of Art. 370 limits Indian constitution’s ability to legislate for the state of J&K. Pakistan has even issued a statement stating that it would never agree to repeal Art. 370 and that the people of Kashmir would feel the same way. When the nation gained independence, specific provisions in the Indian Constitution were kept to protect the interests of J&K, according to the “then-chief minister of Jammu and Kashmir, Omar Abdullah, He said that these provisions cannot be repealed or removed by the Indian Constitution.
“According to Shri G. Kishan Reddy (Minister of State for Home Affairs), The Union territories of Jammu-Kashmir and Ladakh have recently been integrated into the country’s mainstream following constitutional reforms and reorganization of the former State of Jammu-Kashmir. As a result, the residents of Jammu-Kashmir and Ladakh now have access to all of the rights guaranteed by the Indian Constitution and the advantages of all Central Laws”.
The new Union Territories, namely the “Union Territory of Jammu-Kashmir and the Union Territory of Ladakh”, have experienced socioeconomic progress due to the transition. With the holding of elections for Panchayati Raj federations like “Panches and Sarpanches, Block Development Councils, and District Development Councils”, Jammu and Kashmir now have a three-tier system of democratic governance.
Supreme Court’s verdict on the abrogation:
On September 5, a “Constitution Bench led by Chief Justice of India D.Y. Chandrachud” deferred ruling on petitions opposing the omission of the Constitution’s Art. 370, which gave J&K special privileges. The 16-day proceedings included testimony from the government and the petitioners regarding the validity of the process used to repeal the Article and abolish the State of J&K.
Detention of the Haebus Corpus:
In Jammu and Kashmir, there were numerous detentions following the repeal of Article 370. In several courts, Habeas Corpus applications were submitted by individuals and human rights organizations contesting these detentions. The court’s rulings impacted individual liberties and human rights in these petitions. The ministry disclosed that 2,165 petitions were submitted to the Supreme Court and the Jammu and Kashmir High Court between August 2019 and June 2023.
Internet restrictions:
After Article 370 was repealed, the administration in Jammu and Kashmir imposed harsh restrictions on Internet and communication services. These limitations were subject to legal challenges, and the courts were required to balance national security considerations and people’s rights to access information and communication.
Kumari Vijaylaxmi Jha v. Union of India (2017):
In this case, on appeal, the supreme court stated that Art. 370 of the Indian constitution under part XXI that gives special rights and privileges to Jammu and Kashmir is not a “temporary provision.”
Prem Nath Kaul v. State of Jammu and Kashmir:
In this case, the court held that the role and application of Article 370 needs to be observed based on its objectives to give special rights to the state and maintain a distinct relationship between the state and the centre.
ABSTRACT
The Indian Constitution, as we all know and believe, is the supreme command for the whole of the Indian Territory. Though the provisions are subject to judicial interpretation and amendment, the provisions of the Constitution are considered to be utmost value to the function of national politics and governance. One of such provisions has been Article 370, which has been a subject of unending debate and discussion and its abrogation has raised questions of the power of parliament and its legitimacy. Seeking to address this aspect of the debate, this research paper conducts a critical analysis of India’s repealing of Article 370 and its effects on the distribution of power in the Indian Parliament. This study explores the historical background, complex legal issues, and sociopolitical effects of this momentous modification to the constitution. The paper begins with an introduction to the critical study and then analyzes the background history of Article 370, illuminating its origins, importance, and development of its provisions. The research also explores the broader politico-legal aspects of this constitutional change, studying the political repercussions as well as significant legal decisions and challenges that have resulted from it. This study seeks to shed light on a change in the constitution that has vast implications for the country and its government by critically evaluating the historical, legal, and socio-political aspects of this important development.
CONCLUSION
It is a controversial and important issue historically that Article 370 be repealed in India. J&K was given special autonomy under Art. 370, giving it its own constitution and a lot of power over its internal affairs. The further integration of Jammu and Kashmir into the Indian Union, which was long needed, has been covered over, according to those who support this decision. In addition to ensuring equal rights for all Indian citizens, they think it will advance regional development, economic progress, and security. The special status promised to Jammu and Kashmir at the time of its accession to India in 1947, according to critics, was abrogated. They contend that it weakens the region’s distinctive identity and can escalate tensions in the already tense region, particularly in light of Pakistan’s claims regarding Kashmir. Depending on one’s point of view, the decisive judgment on this issue is complex. The issue continues to be a point of legal and political contention even though the Indian government claims that it has operated within its constitutional authority. This choice’s long-term effects on the stability of the region and the residents of Jammu and Kashmir are still being felt. In the end, it will depend on continued negotiations, discussion, and, ideally, a peaceful resolution amongst diverse parties having stakes in the area.
