Article 370: Not just a provision but a story

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The revocation of Article 370 of the Indian Constitution has not only changed the future of a beautiful northern state but has altered the dimensions of India’s outlook for the coming years. On 5th August 2019, the Union Home Minister Amit Shah announced in Rajya Sabha the scrapping of Article 370 which granted special status to Jammu & Kashmir along with Article 35A which provides for permanent residents in the state.

But the reality, a piece of cake as it looks to be, has a rather strong and struggling history. The decision by Hari Singh, the Maharaja of Kashmir, to sign the Instrument of Accession in October 1947—thus joining Kashmir to the Indian Union—precipitated warfare between India and Pakistan that culminated in the establishment of the Line of Control (cease-fire line) in the region in July 1949. The Jammu and Kashmir state thus became the territory that India administered on its side of the line. However, both India and Pakistan have continued to claim the entire Kashmir region, and tensions generally have remained high along the line.

Fighting has occasionally broken out between the two sides, notably in 1965. China’s presence in portions of the area along the northern border of the state has also been contested by India. Meanwhile, the process of formalizing Jammu and Kashmir’s status as a state took several years and was completed only in 1957.

Since then, the state of Jammu and Kashmir and its people’s fates have been hanging on a cliff. Both the countries claim their territorial right over the land, but the sad reality lies in the part that no one thinks about the people living there and the atrocities that have crushed their very spirits of living a free and fearless life. Their day starts with the noise of a bomb exploding nearby or noise of a gunshot. This has become a part of their daily routine. They have become habitual of such events and such events directly or indirectly have affected their psychological health largely.

Scrapping of Article 370 from the Indian Constitution was a historical moment as now all the provisions of the Indian Constitution are applicable to the states of Jammu and Kashmir. There is a huge misconception regarding the scrapping of Article 370. What the public has inferred from such an incident is that the special status of Jammu and Kashmir has been permanently dissolved and that the it will remain as a Union Territory till perpetuity. But such a notion is a bit wrong as Clause 3 of Article 370 – which granted special status to Jammu and Kashmir – empowers the President to declare the special status inoperative anytime.

“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:” The Presidential orders appear to be complete, subject to ratification by Parliament. So, unless the Parliament asks the President to cancel it, that order will prevail. It means that the ultimate power lies with the legislature only which decides the fate of the recently formed Union Territory. If the Parliament seeks to invoke Article 370 again in the future, it can surely do so provided it has followed the correct procedure laid down in the Constitution.

The Presidential order also added a few clauses to Article 367 under ‘Interpretations’. The phrase ‘Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers’ will be understood simply as the ‘Governor of the State’. The phrase ‘State government’ shall mean the Governor, while the term ‘Constituent Assembly’ in the old documents would read as the ‘Legislative Assembly of the State’. According to international legal expert Jill Cottrell Ghai, some of the Presidential orders under Article 370 have been issued since 1954 in similar circumstances when the state was under the President’s rule. The Union governments interpreted the ‘concurrence of the state government’ under these circumstances to mean the Governor.

The Act passed in order to revoke Article 370 is The Jammu and Kashmir Reorganisation Act, 2019.  It contains provisions to reorganise the State of Jammu and Kashmir into two union territories, one to be called Jammu and Kashmir, and the other Ladakh since 31 October 2019. The former will have a legislative assembly whereas Ladakh will be administered by a Lieutenant Governor alone. The Union Territory of Ladakh will include the districts of Leh and Kargil. All other districts will remain with Jammu and Kashmir. Out of the six seats allocated to the State of Jammu and Kashmir, one will be allocated to Ladakh and the remaining five will remain with the Union Territory of Jammu and Kashmir. The High Court of Jammu and Kashmir will function as the High Court for both the Union Territories.

Scrapping of Article 370 marks for a phenomenal incident in the Indian history and the effects of this act of the NDA government will be seen later on when the uprising in the state settles down. Only then can it be analysed as to whether this decision was good or bad and the people residing there will be the real judges of this act and we all will merely be spectators who won’t ever understand their sentiments until we step into their shoes and see things as they are made to see.

-This article is brought to you in collaboration with Nimish Bassi from Himachal Pradesh National Law University, Shimla.

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