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India underwent a big constitutional and political shift. This change announces that J&K ceases to exist as a state. the state has been bifurcated into two Union Territories that is Ladakh and Jammu and Kashmir. This has come from passing of a bill by Parliament, which the Central Government through Presidential Order, does the revocation of Article 370. The state will no more enjoy the special status and its features attached to it. The features such as separate constitution, dual citizenship etc.

  1. WHY SPECIAL STATUS TO J&K?[1]
  2. The answer is in the history. The Maharaja of J&K signed the “Instrument of Accession” in October 1947. According to this instrument, the state wold hand over to Indian government -defence, external affairs and communication, whereas the other sectors would be under the control ruler of State, as per the Jammu and Kashmir Constitution Act, 1939.  
  3. Through this Jammu & Kashmir has acceded to the dominion of India after the instrument was signed by Maharaja Hari Singh.  Accordingly, Article 1 and Article 370, will apply to J&K. The Constitutional Order 1950 clarified the subjects on which Union Parliament would be able to make laws for J&K, in concurrence with the instrument. There were 38 subjects which were added to the List.
  4. A constitutional relationship was established of J&K and Union of India by The Constitution (Application to Jammu and Kashmir) Order, 1954. The following provisions as follows:
  5. Article 35A was inserted in the constitution. This article empowered the State Legislature with the privileges such as – to decide with regard to immovable property , settlement in the state and employment .

SPECIAL STATUS IMPLICATION

Article 370 has been added in Part XXI of our Constitution under the heading of ‘Temporary, Transitional, and Special Provisions’. It implies Special Status to the State.

  • The important difference was that J&K will have separate Constitution and separate flag.
  • As per clause 1(a)(i) of Article 370, it implies that the subjects in Union and Concurrent list that is those in the instrument of accession, can be extended over the state only after consultation with the State Government.
  • As per Clause 3 of Article 370, this special status can be ceased to be operative or shall be operative with modifications as per the order of the President.

MEANING OF TEMPORARY STATUS

Article 370 was added in order to make Jammu and Kashmir to be part of India at the time of independence, which Raja Hari Singh otherwise would not have acceded to India. The status was always temporary. In order to save India’s territory from other countries such as Pakistan and China, such special status was accorded to Jammu and Kashmir. The provision was always temporary because the Constituent Assembly of Jammu and Kashmir always have the right to modify or delete or retain, which they retained it.

WHY REVCATION IS IMPORTANT? [2]

The long bloodshed in Jammu and Kashmir needs to be ended. The state has always been in state of War. The refugees who came from Pakistan at the time of independence have never received citizenship in the State. People who have been residing in J&K, who are from Pakistan can never become Consular but can be Prime Minister. Article 370 has ruined democracy in the state. Article 370 has got corruption at its highest. The poverty is maximum in the state. The victims have never received any benefits. The education has not reached to the state. There are no elections of panchayats and Nagar Palika (73rd and 74th Amendment was never applied).                 

  1. Property- the difficulty raised by Article 370 read with Article 35A, is that no outsider can come and buy property in the state. This is an obstacle in process of development. This state allows its residents to do business in the state and none other citizen of this country is allowed. The wealth of the state has never increased this way and it purposely created poverty in the state.
  2. Poverty is because of Article 370. From 2004 to 2019 government has sent 277 lakhs crore, which was to be spent on the state but it was never seen on the grounds of J&K. 
  3. No check on Administrative Agencies- Internal agencies which checks corruption of the administrative work, have no entry in the state. Article 370 has created monopoly. The state is ruled by its few families and hence no accountability and transparency were achieved in its functioning. This made the way for corruption.
  4. Tourism-The state has never increased tourism in the state, as no hotel and travel industry from different countries has never been permitted. There is no scope of development. No large scale and small -scale industry can be planted in the state.
  5. Hospital and Health -Article 370 has created a ground for politics but did not led to the growth, less education, and no toilets facility. There is no  possibility of establishment  of private hospital in the state, since the land cannot  be acquired by the outsiders. Since no doctors would ever stay in the state as the land cannot be bought by them. As Article 35A, never allowed the purchase of land by oiutsiders. It led to no growth of health in state.
  6. Education- to all the children of this country belonging to the from the age 6 to 14 years have been granted free and compulsory education by 86th Constitutional Amendment, 2009, but which is never applicable in the state of J&K, which means, Article 21 A is not applicable in the state. Private education institution has not been brought because of the difficulty raised by Article 370.
  7. Legislations passed by centre- the laws implemented by this Parliament is not applicable in the state of J&K. The law is never reached to the state even if it is allowed by the state J&K.
  8. Marriage – the women cannot marry outside the state, and also looses the right of property. Such legislation is mental barrier and deprivation of rights of women. In order to give rights to women and Dalits, article 370 needs to be revoked.
  9. Reservation-OBC, Tribal, and Dalits have no reservation in the state of J&K.
  10. Terrorism- the birth and growth of terrorism is because of Article 370. It was grown in the state, because of fear created in the minds of citizens of the state, by different political parties and majority by Pakistan. More than 41,400 people have died post – independence because of Article 370. (Operation Tupac[3]– This operation started by Pakistan in 1988, with the objective to disintegrate Kashmir from India. We have seen the growth of terrorism only after 1989 only. After 1990 there were approximately 41,894 people have lost their lives because of this operation. Ultimately Article 370 has damaged the democracy.  The question is why we need to follow the 18th century operation Tupac.) Today it raises the need to free Kashmir Valley free from terrorism.

POSITIVE CHANGES BY REVOCATION

The big change will be that, it will no more be special and it will become like other ordinary states, that is, extraordinary to ordinary. All the laws which were exempted to Jammu and Kashmir, will be applicable after the revocation of Article 370 and Article 35A by Constitution (application to Jammu and Kashmir) Order, 2019.

Since it is constitutionally valid- Yes! The right is in the constitution

Article 370(3)

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.

KEY CHANGES ARE:

  1. Status of J&K – it will be Union Territory. The term would not be 6 years but will be 5 years. This geographical change has made the Ladakh as Union Territory and Jammu and Kashmir also as Union Territory.
  2. No separate Constitution- the state will no longer have its own constitution after the revocation of Article 370 and Article 35A. There will be one constitution for the entire country.
  3. Single Citizenship- the provision of dual citizenship comes to an end.
  4. Fundamental Rights of the Citizen- after the scrapping of the Article 370 and Article 35A, the citizens of Jammu & Kashmir, will have the rights as enshrined in the Constitution of India. Due to long prevailing special status, it never led the citizens enjoy their fundamental rights. On infringement of Fundamental Right, they also get the right to enforce fundamental rights given under Article 32 and 226 by Supreme Court of India or through respective High Court.
  5. Application of Financial Emergency – after the demolition of Article 370 , the financial emergency can also be imposed.
  6. Application of Right To Information- RTI Act is applicable after scrapping of Article 370.
  7. Application of Indian Penal Code- Ranbir Penal Code is replaced by Indian Penal Code.
  8. Discontinuance of Article 35A- the discriminatory provision of Article 35A has become null and void.
  9. No restriction of property- the big change is that not only residents of J&K can only buy land but it has been extended to all the citizens of the country.
  10. Application of legislations- this relates to the application of all central laws passed by the Parliament, where earlier only state laws made by its legislature were applicable to J&K.
  11. Working of Legislature- the legislature of state will no longer be able to pass its own bills for its state. The legislature of state of J&K will no more be different from other state legislatures of this country. Hence, matters relating to defence, the security of the nation, atomic energy, foreign affairs, shipping and navigation, foreign loan, inter-state trade, taxes on Income etc., all of these will be under the hands of the central government.

The need was to reduce the gap which was broadened in these 70 years of India with its own state J&K. This article failed to provide the citizens of Kashmir well being who have now endured 2 generations of insurgency and violence.

DECISIONS OF SUPREME COURT:

Prem Nath Kaul v. J&K (1959)[4]

Big Landed Estates Abolition Act, 1950 was challenged on the ground that it was illegitimately ratified by Maharaja Yuaraj Karan Singh (Hari Singh’s son). The Supreme Court confirmed the Act. The court held that the Maharaja’s unrestricted legislative powers were not curtailed by Article 370

Sampat Prakash v. J&K (1968)[5]

The Presidential Orders made on 1959 and 1964 was challenged under Article 370(1) that extended the operational period of Article 35(c). Article 35(c) has made preventive detention legislation. This legislation has exempted those acts or obligations in J&K from claiming fundamental rights. The two primary arguments made by petitioner are:

This means Article 370 ceased to exist after J&K Constituent Assembly dissolved in 1957. Even if Article 370 continued, President’s power to amend orders under Article 370(1) comes to an end after the J&K Constitution came into force. The Supreme Court upheld the Presidential Orders that Article 370 will only beak down upon the advice of the Constituent Assembly under Article 370(3). The power to issue orders under Article 370 (3) includes, the power to add, amend, vary or rescind them, since General Clauses Act, 1897 applies to the Constitution.

Mohd. Maqbool Damnoo v. J&K (1972)

In this case it was challenged that J&K Preventive Detention (Amendment) Act, 1967 violated Article 370(1) that is it failed to receive the assent of the Sadar-i-Riyasat. It means in 1952, the J&K Constituent Assembly took the place of the Maharaja with the Sadar-i-Riaysat as its executive head. The Supreme Court validated the amendment, since it had received the J&K Governor’s concurrence. While Article 370(1) refers to the Sadar-i-Riyasat, the 1965 amendment to the Jammu and Kashmir Constitution provided that the appointment of a governor instead of a Sadar-i-Riyasat. Also, Article 367 of the Indian Constitution was amended as the consequence of referring to Sadar-i-Riyasat, which meant governor.

SBI v. Santosh Gupta (2016)[6]

In an ppeal to J&K High Court judgment, which ruled that provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 will not apply to Jammu &Kashmir. The Supreme Court reversed the judgment, and held that Parliament is the law – making body which enacts the legislative provisions for the whole nation and it is much more superior to the J&K Constitution. The court held that Article 370(1)(b) does not restrict Parliament’s power to make laws, also as per the Presidential Order 1954, the Constitution of India is applicable to J&K too.

Dr. Charu Wali Khanna v. UOI (pending)

The decision of this case is pending with the Court.

The permanent residency laws in Jammu & Kashmir were challenged, that is, the reasonableness and validity of Article 35A. The two primary grounds were raised by the petitioner:

One that it was Extra-constitutional means, introduced wrongfully through 1954 Presidential Order

Two it discriminated against women and empowered Article 6 of the Jammu & Kashmir Constitution.

CONCLUSION

In the words of Dr. B.R. Ambedkar[7] our constitution is-

“On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality.

In politics we will be recognizing the principle of one man one vote and one vote one value.

In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value.

How long shall we continue to live this life of contradictions?

How long shall we continue to deny equality in our social and economic life?

If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

So Dr. Ambedkar was always in favour of removing of inequalities, prevailing in any form. So Article 370 was nothing more but a set of inequality against the citizens of this country with the citizens of J&K.

The turmoil which Kashmir Valley has seen for seventy years is enough, it is necessary to give them peace by withdrawing the Article 370 and Article 35A from the Constitution of India over the state of Jammu and Kashmir.

What has been done cannot be brought back but peace can be restored from this very change and development can be ensured.  

Certain important issues are raised such

One when Jammu and Kashmir were converted into Union Territory it violated the provisions of Article 3 of our Constitution. Since this bill was never referred to President by the State Assembly. While in the re-organisation of the state, it requires unanimity of presidential order with the government of the state. Whereas, in the above situation, the Governor’s consent is deemed to be the considered as the government’s consent.

Second issue is that the Instrument of Accession was a treaty between two sovereign nations, who decided to work together. This is a federalism issue. Since “pacta sun servanda” in international law states that, this treaty need to be honoured by the both the parties.

The step was Constitutional?

The taking away of Article 370 raises biggest question in our mind that whether it was legal step?

Since, it’s been a year that Jammu and Kashmir has no state government. Since last year June 2018, the federal rule was imposed on the state, after the then Chief Minister was reduced to minority. This meant that the centre government had to take consent of the Governor of the state. But this step is very much within the constitutional limits and the action is very much legal. The federal government required the consent of state, which was given by its Governor, which is within the limits of Constitution.

In the end we can say that our Government has taken a very bold decision. As this Article has always been Temporary and Transitional Provision. It was allowed by the constitutional makers for the interest of our nation that such special status was awarded to it. While scrapping of Article 370 is not a bad decision. In order to make violence free and to stop terrorist activities, it became the need of hour. This protection to our J&K citizen is possible with our Indian Army forces only. As our minister Amit Shah and Narendra Modi repeatedly said that removal of such status is bringing long due development for the citizens of valley. Hence, we support development and no dirty politics.


[1] https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-special-status/

[2] https://www.youtube.com/watch?reload=9&v=x9DE4t-qpt0- speech of Home Minister in Raya Sabha

[3] https://en.wikipedia.org/wiki/Operation_Tupac

[4] https://indiankanoon.org/doc/816126/

[5] https://indiankanoon.org/doc/1573666/

[6] https://indiankanoon.org/doc/105489743/

[7] https://www.goodreads.com/author/quotes/618535.B_R_Ambedkar