Article 370 Repealed: Decoding the legal landscape and Impact on Jammu and Kashmir

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11 months ago

Table of Contents

Author: RITESH SINGH SHEKHAWAT

ABSTRACT

Delve into the historical context surrounding the inclusion of Article 370 in the Indian Constitution and its significance for Jammu and Kashmir’s special status. Analyze the implications of its nullification, such as the potential impact on regional identity and political dynamics. Additionally, explore the potential consequences for India’s federal structure and the central government’s authority over states.

INTRODUCTION

The revocation of Article 370 by the Indian government has had significant implications for the region of Jammu and Kashmir. It has sparked debates on the constitutional validity of the move and its impact on the autonomy and special status of the region. The decision has also raised concerns about the potential consequences for peace and stability in the region, as well as its effect on India’s relations with neighboring countries. Additionally, it has prompted discussions on the need for inclusive governance and development in Jammu and Kashmir to address the longstanding grievances and aspirations of its people.

What was Article 370 About?

Article 370 was not a mere legislative provision; it was a nuanced response to the unique circumstances surrounding the integration of Jammu and Kashmir into the Indian Union. Enacted in 1949, this article provided a special status to Jammu and Kashmir, allowing it to have its constitution and flag, setting it apart from other states in India. The limited applicability of Indian laws in the region, confined to external affairs, defense, and communications, further defined this special arrangement.

It was made by N Gopalaswami Ayyangar, a member of the constituent assembly of India, and it was added to the constitution as a ‘temporary provision’ in 1949.

It was founded on the provisions of the Instrument of Accession, which was signed by the ruler of Jammu and Kashmir, Hari Singh, in 1947 to join India following an invasion by Pakistan.

Article 35A: Defining Permanent Residents

Adding another layer of complexity, Article 35A was introduced to delineate the concept of permanent residents in Kashmir. This provision restricted non-residents from buying land, applying for government jobs, or availing certain educational benefits. The constitutional tapestry of Jammu and Kashmir became a unique blend of autonomy and integration, reflective of the delicate balance sought by the framers of the Indian Constitution.

Why was the Article 370 Removed?

Integration and Development: Article 370 hampered Jammu and Kashmir’s full integration into the Indian Union, instilling a sense of separatist and hampering its development.

It was hoped that full integration would provide the people of J&K with improved access to resources, infrastructure, and opportunities.

National Security: Pakistan used Article 370 to assist terrorism and secession in the region. The repeal will boost national security by giving the Indian government more control over the region and allowing it to crack down on terrorist activity.

Ending Discrimination: In Jammu and Kashmir, Article 370 discriminated against women, Dalits, and other marginalized groups. The repeal would bring them within the jurisdiction of Indian laws, giving them equal rights and opportunities.

Transparency and Accountability: The implementation of Article 370 resulted in a lack of transparency and accountability in Jammu and Kashmir’s governance. The repeal would subject the state to the Central Vigilance Commission and the Right to Information Act, resulting in better governance and accountability.

Economic Prosperity: The implementation of Article 370 hampered economic development in Jammu & Kashmir. The repeal would encourage more investment, tourism, and job growth in the region.

How government repealed Article 370?

Government used 370 to kill 370 in exercise of the powers conferred by clause (1) of article 370 of the Constitution, President Ram Nath Kovind in “concurrence” with the “Jammu and Kashmir government” promulgated Constitution (Application to Jammu and Kashmir) Order 2019, which states that provisions of the Indian Constitution are applicable in the state. Which means the special status of Jammu and Kashmir is gone.

Now talking about how J&K government agree, This presidential order leads to the interpretation of Article 370(3) in a way that “constituent assembly”, which lapsed in 1950 is replaced with “legislative assembly”.

However, it is important because the idea to eliminate Article 370 began far earlier. Following the BJP-PDP split, president’s rule was implemented in the state. The groundwork was laid in February 2019, when the BJP introduced the Jammu and Kashmir Reservation Bill. While the bill called for 10% reservation for lower castes in Jammu and Kashmir, there was a tiny provision that stated that if the state did not have a functioning Assembly, the Governor might act as the local Assembly.

Article370 of constitution or to extend its benefits to other states also so as to remove the existing discrimination.

So this order has the agreement from the State and the Central government and is now legal.

Accusations and Response by supreme court

Accusation No. 1

The attack on Article 370: First of all, they said that as soon as the country was liberated in 1947, the King of J&K, Hari Singh, decided to become a separate country. But when in 1948, Pakistan, as the country was liberated, was able to do so,the King of J&K, Hari Singh, started an invasion on J&K. Then the King of J&K, Hari Singh, himself asked for help from India and signed an agreement to become an instrument of accession ,that is an agreement to become the state of India. And highlighting this, the Chief Justice of India clearly said that from that day, J&K had become an integral part of India like other states. And that is why, there is no question of a separate sovereignty of Kashmir from India.

Accusation No. 2

Article 370 cannot be removed: CGI has answered the second accusation of constitutional validity by saying that the Jamu and Kashmir merger in India was in a war-like situation, Because of which the people there felt safe, that’s why they were given temporary special rights through Article 370. And this temporary word is clearly written in Article 370 and that’s why it is legally abrogated, meaning it can be abolished.

Accusation No. 3

The Indian Parliament does not have the powers to remove Article 370 so this is the government’s illegally taken action: Now, in the third accusation, the authority was questioned to remove Article 370 from the Indian Parliament. While answering this, CGI said that in the year 2019, under the Indian Constitution there was a presidential rule in Jamu and Kashmir and whenever there is a presidential rule in any state, everything from the law-making power to the administrative power, everything comes into the hands of the president and under this same power, under Article 356(1)(b) through representing the state assembly of Jamu and Kashmir, the Indian president removed this Article 370 with temporary provisions, which is completely correct and constitutionally valid.

So basically, the Supreme Court declared this decision of the government valid for these three reasons.

What did the Court Say?

Article 370 was incorporated into the Indian Constitution as a transitory measure: Making Article 370 a permanent provision may violate the process outlined in the Indian Constitution. The Indian Constitution, Article 368 A, allows the Assembly of India, the Government of India, to change any part of the Constitution. However, the Supreme Court’s Keshavanand Bhartiya decision highlights the need for caution. Kesavanand Bharatiya’s decision allows the government to change or amend any clause. It can be done provided it does not contradict the basic structure, it does not break the basic structure and till now this provision of Jammu and Kashmir under Article 370 has not been made a part of the basic structure, that is why if we consider Article 370 Making Ladakh a permanent provision would violate the Constitution’s reconstruction process.

This is what the Supreme Court has stated. The Supreme Court affirmed the restructuring of Ladakh, citing petitioners’ The Indian Constitution does not allow for the separation of Ladakh and Jammu and Kashmir. However, the Supreme Court ruled that the Government of India’s action was fully valid.

Governor can Assume “all or any” Roles of the State Legislature: The court affirmed the proclamations by citing the landmark 1994 decision in ‘SR Bommai v Union of India, 1994’, which addressed the Governor’s rights and restrictions under President’s authority.The CJI said that the governor (President in J&K’s case) can assume “all or any” roles of the state legislature and such action must be tested and operated judicially only in extraordinary cases.

The State Government’s approval is not required: The court concluded that the President might unilaterally notify that Article 370 no longer exists in the exercise of his duties under Article 370 (3) of the Constitution.

It also stated that the President was not required to obtain the approval of the State government in this matter, as required by the provisos to Article 370(1)(d) .

Instructions of Supreme Court

The Supreme Court’s first instruction is that Jammu and Kashmir will soon be declared a state. Statehood should be granted. Jammu and Kashmir is currently right now a union territory. It has the status of a Union Territory, although the government is always undertaking such attempts. You will remember it in the past. The administration has amended the Jammu and Kashmir Re-Constitution Act to provide for reservation in the legislature. There was even talk of raising the assembly’s seats, therefore the government is working tirelessly to form the assembly there as soon as possible. It should be established as quickly as feasible and granted the status of state.

Aside from that, the Supreme Court has urged the government to make every endeavor to schedule polls in Jammu and Kashmir by September 30th, implying that elections will be held shortly. As you can see, Jammu and Kashmir is now fully integrated with India, and the election process will be carried out in the same way that it is in the rest of India. And soon, the merger of Jammu and Kashmir may terminate totally.

Supporters Viewpoint: Economic Progress and Integration

Individuals who support this choice to keep up with the circumstances in Kashmir would further develop This is a mutually beneficial arrangement for Kashmiris and Indians. This is because the Indians can now purchase land in Kashmir and contribute there because of which the land costs in Kashmir would rise. The neighborhood Kashmiris would get more cash when they would rent out their properties or offer terrains to other people. If more Indians came to Kashmir to take advantage of educational scholarships, apply for government jobs, and buy land, the overall economic development that would result would reduce crime and terrorism. This is because, by default, if people there joined jobs, there would be fewer people who were the victims of terrorism. If more Indians came to Kashmir to take advantage of educational opportunities, there would be more education opportunities. One more benefit for the Kashmiris is that they would now go under Indian regulations and profit advantages of things like the Right to schooling and the Right to data. The other contentions express that the Kashmiri pandits, who needed to escape, are incredibly glad that they would now have the option to get back to Kashmir. In conclusion, there’s a contention that expresses that this would have a mental effect A solitary banner and a solitary constitution would make the Kashmiris feel additionally coordinated inside India.

Opponents’ Perspective: Undemocratic Imposition and Constitutional Quandaries :

Individuals that are against this choice have an extremely basic contention that the Kashmiris were not asked by any stretch of the imagination prior to doing this Many soldiers were brought in, the web was switched off, the landlines were switched off The Kashmiri legislators were set detained at home, individuals were secured inside their homes And the public authority took this choice without the informing the Kashmiris about it Individuals, hence, say that this adds up to unlawful occupation and this can measure up to Despotism That is, bringing in the military and forcing this choice on them without asking them initially Having broken up the State gathering of Jammu and Kashmir and forcing President’s standard there Not leading the re races, Making this stride is something like a tyranny No body is focusing on individuals (of Jammu and Kashmir) No body is observing the equitably chosen lawmakers (of Jammu and Kashmir) Another contention is that doing this was illegal and sums to deceiving On the grounds that we utilized an escape clause: this choice was taken when the state gathering was non existent For instance, Prasant Bhushan composes that this could never have been finished and this was illegal This adds up to cheating on the grounds that individuals were tricked that the 10,000 soldiers were being gotten in light of the fact that there was a danger of a psychological oppressor assault In any case, there were no dangers. This was done because a choice must be taken behind their backs So individuals were misdirected. They were kept in obscurity. The counter contention to this is that had individuals been educated, a ton of viciousness would have followed Consequently, getting the soldiers was important Assuming that it ought to have been finished by beforehand illuminating individuals and with conversations, this is the thing has been progressing since the beyond 70 years This is the counter contention to that A few separatists contend that article 370 was the sole vehicle of association among Kashmir and India It was the sole lawful medium, you could say Repudiating this would intend that there stays no legitimate premise whereupon Kashmir stays inside India Because of which there could be issues world over and in the Unified Countries and They say that Kashmir has now turned into an Indian military involved express The last point which contends against this is the scurry with which this bill was passed There was no conversation or discussion in the Parliament.

Conclusion

In conclusion, the revocation of article370 marks a significant juncture in the legal and sociopolitical history of jammu and kasmir. The Supreme Court’s recent decision not only supported the ideas of ‘Ek Bharat, Shreshtha Bharat,’ but it also served as a forceful reminder of the necessity of unity and a collective commitment to good governance. This ruling demonstrates the court’s dedication to building our nation’s fabric and maintaining the values that distinguish us as a society. Jai Hind Jai Bharat.

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