Emergence of new Jammu and Kashmir

The pros and cons of abrogation of Article 370

Author: Rachna R Kurup,

2nd year, 4th semester,
Symbiosis law school, Hyderabad.

Emergence of new Jammu and Kashmir - The pros and cons of abrogation of Article 370

Introduction

Bharatiya Janatha party- led Indian government on August 5th revoked article 370 which gave special status to Jammu and Kashmir. Since 1950 the state was enjoying a near autonomy. Now the state will be divided into the union territories of Ladakh without a legislature and Jammu and Kashmir with legislature.

Article 370 of the constitution of India gave temporary special provision to Jammu and Kashmir by granting special autonomous status to the state. All the provision of the constitution which is applicable all over the country is not applicable to Jammu and Kashmir. This provision was drafted in 1947 by Sheikh Abdullah who was the appointed prime Minster of Jammu and Kashmir by Jawaharlal Nehru and King Hari Singh. Sheikh Abdullah wanted article 370 to not be under the temporary provision as he wanted an iron clad autonomous status to the state of Jammu and Kashmir which the centre didn’t comply with.

According to article 370, excluding foreign affairs, defence and finance, the parliament needs the accord of the state government for applying all other laws. Thus the citizens of the state live with a separate set of laws including for laws related to citizenship, fundamental rights and ownership of properties. Under this article the state has no power to declare financial emergency under article 360 of the constitution of India. Only in case of war or external aggression it can declare emergency and not for internal disturbances or imminent danger unless it is made at the consent or request of the state government.

Article 35A of the constitution of India is also known as permanent residents law. This article allows to define the residents of the state which means that no outsider can a property in the state or get a state job. A female of the state also loses her right to property if she marries an outsider.

The government has taken a very crucial move by revoking article 370 and 35A and by giving a new status to Jammu and Kashmir and Ladakh .This is a major step toward the ensuring inclusive India. The abrogation of article 370 will have enormous effect on the state of Jammu and Kashmir. This decision of the government has its own pros and cons. This move of the government has been heavily criticized by many leaders of the

country. The main objective of the research paper is to study the establishment of new Jammu and Kashmir and its present scenario and to find out whether this decision of the governmentis a misadventure or a longed necessity.

Research Objective

· To study about the various reasons for revoking of article 370

· To find out the implications of revoking article 370 in Jammu and Kashmir< /o:p>

· To understand the advantages of revoking article 370 on the state

· To find out whether the revocation is legal under Indian law.

· To understand the reaction from the affected areas.

· To understand the present scenario of the state.

Research questions

· What are the reasons for revoking article 370?

· What are the implications of revoking article 370 in the state of Jammu and Kashmir.?

· What are the advantages of abrogation of article 370 on the state ?

· Whether the revocation is legal under Indian Law.?

· What is the reaction from the Jammu & Kashmir and Ladakh?

· What is the present scenario of the state of Jammu and Kashmir?

BIBLIOGRAPHY

BOOKS

· Durga Das Basu, introduction to constitution of India, 23rd edition, 2018, Lexis Nexis

· Dr.J.N Pandey, constitutional law of india,2019,central law agency

· MP Jain, Indian Constitutional law, Eighth edition , Lexis Nexis

ONLINE WEBSITES

· http://www.legalserviceindia.com/legal/article-946-the-emergence-of-new-jammu- and-kashmir.html

· https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India

· https://en.wikipedia.org/wiki/Indian_revocation_of_Jammu_and_Kashmir%27s_speci al_status#Reactions_from_the_affected_areas

· https://www.thehindubusinessline.com/news/abolishing-article-370-will-benefit- kashmiris-sajjan-jindal/article28823072.ece#

· https://www.livemint.com

· https://www.bbc.com/news/world-asia-india-49234708

· Vhttps://www.livemint.com/opinion/columns/opinion-the-revocation-of-article-370- ends-a-foul-majoritarianism-1565549062884.html

Legal Database

· Lexis Nexis

· SCC Online

· Manupatra

History

The modern political history of the state Jammu and Kashmir itself is a story of changing status from the beginning of the 19th century and continued even after the confusions following Indian in 1947 and simmering uncertainty since then.

The state of Jammu and Kashmir acquired its modern shape under Rajith Singh in the 19th century by annexing Kashmir from the Mughal empire to the Sikh confederation. The administration of Jammu and Kashmir was headed by chieftan from Dogra community and was expanded by capturing Ladakh for the Sikh empire. The British rule of east and company was getting strong on this period and they challenged the advance of Sikh emperor. After the first Anglo Sikh war in 1864, the east India Company sold the region of Jammu and Kashmir to maharaja Gulab Singh, a dogra ruler after signing the treaty of Amritsar. The Dogra king ruled the regions of Jammu Kashmir valley, Balestan and Ladakh. This arrangement continued till 1947, when Indian subcontinent was divided into 2 countries, India and Pakistan .

British rule in India end after the partition and in 1947 August India gained independence from the British . India’s princely states were given three choices, stay independent or join either India or Pakistan. All other princely states except Jammu and Kashmir, Hyderabad joined the India union. India’s home minister Sardar V Patel worked and convinced the princely states and the maharaja Hari Singh, the then ruler of Jammu and Kashmir signed a stand shell agreement with Pakistan opting for status quo. In October 1947 Hari Singh signs the instrument of accession of Jammu and Kashmir in favour of India following an attack by Pakistan army of soldier and tribes on them which triggered the armed conflict between India and Pakistan. The IOA was to handover the control of defence, communication and external affairs to India. On January 1948 India took the Kashmir issue raising the Palestine forced occupation of parts of Kashmir to the United Nations. The UN suggested a plebiscite but the conflict continued. On 19th may 1949, the CM’s and rulers of all states of India met and agreed that separate constitutions were not necessary. All accepted their constitution as their own constitution and thus the subjects available for legislation by the state and central government was uniform across India. On the same period raja Hari Singh brought a interim government in jammu and Kashmir and sheikh Abdullah was named the prime minister. On 1949 UN mediates a cease for between India and Pakistan also known as Karachi agreement allowing the two countries to retain the country over the territory. On July 1949 sheikh

Abdullah and 3 colleagues join the Indian constitution. An assembly to discuss the provision of article 370 under the Indian constitution which was still on the process of drafting. On 1950 the Indian constitution comes into force. Under article 1 defines Jammu and Kashmir as a state of India, article 370 accords autonomous status to Jammu and Kashmir. Accordingly, article 370 was incorporated into Indian constitution, which stipulated that other articles of the constitution that gave powers to the central government would be applied to Jammu and Kashmir only with the concurrence of the state constituent assembly.it was a temporary provision in that its applicability was intended to last till the formulation and adoption of
the state constitution. However on 25th January 1957, the state constituent was dissolved.

Without abrogation or amendment of article 370. Thus the article 370 was considered to have a permanent feature in the Indian constitution. The key personalities involved in the formulation of article 370 was then prime minister of India Jawaharlal Nehru, home minister Sardar Vallabhai Patel, Raja Hari Singh and Sheikh Abdullah.

WHAT IS ARTCILE 370

Article 370 of the Indian constitution is a temporary provision which grants special autonomous status to the state of Jammu and Kashmir. Article 370 is drafted in part XXI of the constitution of India . As per the history , article 370 has resulted in widening the gap between the people of Jammu and Kashmir and India. According to this article except for defence, foreign affairs, finance and communication, parliament needs the consent or agreement of the state government for applying all other law. Under article 370 the union government has no power to declare emergency in the state on the grounds of internal disturbances or danger but only in case of war or external aggression unless with the consultation or the concurrence of the state. But later, this article has failed to benefit the people of jammu and Kashmir and was used to spread terrorism by the separatist.

ARTICLE 35A

Article 35A provides special rights and privileges to permanent residents of Jammu and Kashmir. Through a presidential order, the article was inserted into the constitution of India. The permanent residents of Jammu and Kashmir had rights to purchase land and any unmovable property, they also could vote and contest for elections ,they can look for government jobs and availing other aids from state such as health care and higher education. The Indian citizens who are not permanent residents of Jammu and Kashmir are not entitled with these special privileges.

PROVISIONS PROVIDED BY ARTICLE 370 TO THE STATE OF JAMMU AND KASHMIR.

1. The state is exempted from any other laws of the constitution provided for the governance of the states.

2. The law made by the parliament is not binding the state of Jammu and Kashmir expect for three subjects – external affairs, defence and communications

3. The Centre has to take prior permission from the state of Jammu and Kashmir if the Centre wants to extend any constitutional provision in the state.

4. The state constituent assembly should approve the concurrence received.

5. The authority of the state government to give concurrence lasts only when the state’s constituent assembly is convened.

6. Only the President is empowered to make an order amending or abrogating it. Amendment under 368 would be applicable only when it is applied by the order of the President

REASON FOR REVOCATION

Prime Minister Narendra Modi and the Hindu nationalist Bharatiya Janata Party had long opposed Article 370 and revoking it was in the party’s 2019 election manifesto. According to the government article 370 is the reason for under development in the state of Jammu and Kashmir.

They contended that the article 370 should be abrogated to integrate Kashmir and make them in the same footing like the other parts of India.. After coming back to power with a massive majority, the government without wasting time acted upon the pledged promises. Critics of Monday’s move are linking it to the economic slowdown that India is currently facing – they say it provides a much-needed diversion for the government.

Many Kashmiris are of the opinion that the main objective of BJP government is to change the demographic character of the state of Jammu and Kashmir as it is the only state with

Muslim majority and wants to allow outsiders to buy property in the state1. Although Home Minister Amit Shah’s announcement in parliament on Monday came as a surprise to most Indians, it would have taken the government some preparation to arrive at the decision.

CHANGES DUE TO REVOCATION OF ARTCLE 370

1) Removal of dualcitizenship

2) The residents of Jammu and Kashmir should accept Indian flag and abandon the other flag

Insulting Indian flags or national symbols was not a crime before but now the people of the state should respect nation symbols and flags.

3) The supreme court orders will be binding on the state also.

4) Parliament of India will be able to make laws regarding more subjects as compared to now on only three (Defence, external affairs, communication). Before the parliament could only make laws regarding three subjects but now they can make law for more subjects

5) Right to information and right to education will start to be applicable.

6) Comptroller and auditor general(CAG) will start to apply.

7) Revocation of Shariat law

8) Other than the permanent residents of Jammu and Kashmir, outsiders will be able to own property in the state

9) The authority of panchayat in state will be no more.

ADVANTAGES OF REVOCATION

Economic development of the state

The abrogation of article 370 will remove the restrictions to the entry of citizen of the other parts of the country to do business in the state and the transfer and ownership of lands, which will bring publicand private investments in all major industries especially in the IT, agriculture, health and tourism. The investments in the state well enhance the growth in infrastructure of the state which will increasethe business and job opportunities of the citizen. These positive changes will improve the living standard of the people of the state and eradicate under development.

Health and tourism industries

More private investment will happen in these industries which will also boost growth and employment of the state. Once a heaven of tourist is gradually shiftingto a haven of terrorism. Now these changes will gradually bring back the state to its original status. The new investments in the tourism sectorcan fully releasethe potential of the state, including spiritual tourism.The increase in the health industrywill improve the health care industries of the state. the More hospital of super specialty facilities well help the citizens from travelling to other states for special and better treatments. The development of the health segment will make the state best for medical tourism hub.

Education infrastructure

Lack of quality in higher education force the study of Jammu and Kashmir to move to other parts of the country. now the removal of the status will bring in top institutions and universities to the state in all levels of education. The boom in the higher education will also benefit other parts of India. The improvement in the quality in the higher education and the right to education enjoyed by other youngsters in other parts of India will applied in Jammu and Kashmiras well.

Law and order

News and amendments to the existing ones will also be beneficial to the people of Jammu and Kashmir adding the law making. The right to education, right to information and the reservation of minority will be applicable to the state. The direct investment of central government will provide appropriate measures to control corruption and authorities will be in a better position to check terrorism.

The abrogation of article 370 will bring the spirit of one nation, one constitution a reality and will certainly uplift the prosperity of the citizens of Jammu and Kashmir and also will assure the empowering of women in the state.

Implications of the revocation

Special status for J&K

Jammu and Kashmir was given the autonomous power by the article 370 from the year 1952,which limited the centre to take decisions only in matters regarding finance, communication , external affairs and defence. The state had a separate constitution and flag but now, the revocation of article 370 will take away the autonomous status of Jammu and Kashmir. This will allow the centre to declare emergency in the state and also all provisions of the constitution of India will be applicable in the state of Jammu and Kashmir

Unique privileges under Article 35A

Article 35A gives special privileges to the permanent residents of the state. The article forbids the non permanent residents of Jammu and Kashmir from owning or buying a land , applying for government employments o, buying any immovable property or any scholarships. After the revocation of article 370 , the permanent residents of the state will lose all these privileges.

Article 370 protected the state’s demographic character

Mehbooba mufti opined that Jammu and Kashmir is only Muslim majority in the country and the intention of the centre is to change the demography of the country and to disempower Muslims so that they will become a second class citizen in the country. She also said that this abrogation of article 370 is “another partition along communal lines” this is a opinion echoed by other people state also. The revocation of article 370 and also article 35A which comes under the article 370 will result in the migration of Hindus from other parts of the country which will cause a demographic change in the state

Legislative powers

Prior to the abrogation of article 370, the stet assembly had the power to clear bills within the state but now the assembly will lose its power and the power will now shift to the union government. The presidential order also states that in the absence of the state government the governor of the state will exercise the powers of the elected government.

Preferential employment opportunities

As per article 35A which comes under Article 370 , the non permanent residents of the state could not avail a job in the state of Jammu and Kashmir. Locals were the only option to the companies and they were forced to hire them. But now , the abrogation of the article 370 will result in lesser job opportunities to the locals as people from different parts of the country could come to the state and bag a government jobs. Therefore the revocation of the article 370 will result in lower employment opportunities to the people of Jammu and Kashmir.

Right to protect its state borders

Article 3 of the Indian constitution allowed redrawing of the state borers for creating new states . but due to the autonomous status the Jammu Kashmir had, this article was not applicable to the state of Jammu and Kashmir. But the revocation of article 370 will result in the loss of their right to protect their state borders. The state has been divided into two union territories due to internal security issues and terrorism prevailing in the state.

LEGALITY OF THE REVOCATION

Another important question regarding the abrogation of article 370 is whether it was a legal move. As per the constitution of India, any change in the article 370 which gave autonomous power to the state of Jammu and Kashmir can be made only by the consent of the state government but the state of Jammu and Kashmir was not having a state government for a while now

When the government then CM of Jammu and Kashmir, Mehbooba mufti was reduced to minority, the centre imposed the federal rule which means that the consent of the governor is only needed .According to centre, it is within the rights to bring modification and federal government has taken such decisions in the past as well. But different experts are giving different opinions.

Subhash Kashyap, a renowned constitutional experts said the abrogation of article 370 by the government is not unconstitutional and there is also no fault to be found.2

But another expert, Mr. A.G Noorani opined that that revocation of the article 370 was illegal and is very similar to committing fraud.3 He also said that it was “an illegal decision, akin to committing fraud”4 that could be challenged in the Supreme Court.

It was possible on the side of the opposition to put a legal challenge against the scrapping of article 370 but Kashmir is a very sensitive issue with most of the Indians and many parties are cautious whether the will be labelled as anti-India.

Reaction from affected areas

Opposition

The chief minister of the state, Mehbooba Mufti called it as the “blackest day of democracy” she said the government of India took away all these benefits and privileges of the jammu and Kashmir people.

Omar Abdullah who was the former chief minister of the state said the abrogation of article 370 was “unilateral and shocking”. He said that it was a complete betrayal on the part of India of the trust vested by the people on Jammu and Kashmir.

Asgar Ali Karbalai, former Chief Executive Councillor of Kargil’s Hill Development Council, said “people in Kargil considered any division of the state on the grounds of “religion, language or region” as undemocratic. Certain
religious and political organisations in Kargil, including the Imam Khomeini Memorial Trust, condemned the Indian government for acting “without the consent from the people” and called for a general strike in the Kargil district.”5

Shah Faesal , a Kashmiri politician opposed the move he said “This is being seen as the biggest betrayal by the Indian state in last 70 years. It was not possible to reach Omar Abdullah, Mehbooba Mufti, Sajjad Gani Lone or send a message to them. In other districts, curfew is all the more strict. You can say that the entire eight-million population has been incarcerated like never before,” he also said that abrogation of article 370 was indeed an indult to the diginity of the people of jammu and kashmir. He also said that this move will have a long term consequences.

Support

Jamyang Tsering Namgyal, the member of loksabha of the Ladakh constituency supported the move and said that the revocation of article 370 will result in increase job opportunities and development. He also said that due to Kashmir they lost all their development, identity and language and its mainly because of the article 370. He also pointed out the move had all support from the Ladakh region .

The Ladakh Buddhist association praised the abrogation of article 370. They organised a celebration for thanks giving in Leh on 8th august which was attended by various religious and political leaders. The Buddhist community of Leh and Ladakh said that they were often ignored and hope the revocation will create good changes and will help them to direct their own aims and purposes.

Many people living in the Jammu and Kashmir also supported the abrogation . various celebration were conducted in different parts of the state by distributing sweets etc.

Many people belonging to the Kashmiri Hindu community due to the on going violence were displaced from the Kashmir valley. These people supported the abrogation and are hoping to come back . the community consist of almost 300000 – 400000 people.

Many banners were put up across the Ladakh region showing their gratitude towards the prime minister Narendra Modi and remembering the 4 youth who lost their lives while agitating for union territory status. Many communities such as Sikhs, Valmikis, Gujjar Bakarwals and west Pakistan refugees welcomed the move as there we all victims of the discriminatory laws prevailing in Srinagar. The Jammu and Kashmir also felt that they were ignored and is hoping that this will bring development by reorganization. Also the Pandit refugees of Kashmir are hoping for rehabilitation

OPINION FROM INDIANS

Opposition

Many people did not support the abrogation of article 370 and said that the state misused that state power arbitrarily. Also the were of the opinion that the president acted in haste.

A.G Noorani , a constitutional scholar said that the decision of the government to revoke article 370 through controversial way completely fraudulent and unconstitutional.

Amartya sen also criticized the act of the government and said that “he was not feeling proud as an Indian”. 6He also said that to prevent the backlash against the Indian government it was a colonial excuse to keep the Kashmiri leaders in detention.

the leaders of the main opposition party in our country, Indian national congress also opposed the abrogation of article 370. Most of the congress leaders condemned the detention of the political leaders of Kashmir. Chief minister of Punjab ,Amarinder Singh said that it was completely unconstitutional . he also said that this move will create a bad recedent because it shows that any state in the country can be reorganized by the presidential orders7. The cm also banned celebrations or protest regarding the abrogation of article 370 on the state of Punjab.

Rahul Gandhi criticized the detention of political leaders and said that it was a unconstitutional act.

Many people through out the country showed their protest against the revocation of article

370. And called it as a death of democracy. The people who protested also asked the government to reconsider the abrogation. They regarded it as an assault toward the constitution of India. People called its as murder of democracy

The members of the Indian national congress filed a petition in the Supreme Court for urgent hearing. First petition was regarding the abrogation of article 370 while the other one was for the detention of political leaders and also the communication blackout and curfew in the Kashmiri region but the Supreme Court rejected the petition for urgent hearing and placed it to normal proceedings.

Support

The abrogation of article 370 was passed by great support and majority in the parliament. This decision was not just supported by the Hindu nationalist party-BJP but also other parties that usually oppose BJP. Some leaders of congress also supported the decision of the government and said that a step towards integration of India .

Deepender Singh Hooda, the congress party whip of the parliament said that the abrogation of article 370 in Jammu and Kashmir is with the interest of national integrity. Congress politician Janardhan Dwivedi supported the revocation article 370 and said that article 370 was historical mistake and was happy that it has been corrected even if it was late. The BSP leader Mayavati and Delhi CM Arvind Kejriwal supported the abrogation. They were of the opinion that article 370 is responsible for the under development of the state and also reason for causing economic, political and social injustice in the state. Many community like Buddhist were denied all the benefits in the state but now they will get their long pending privileges.

The political leaders of the state of Telengana also supported the scrapping off article 370 and also said that the move of the government was indeed daring and courageous. MP of the Telugu desam party, Ravindra Kumar congratulated the decision and said that the people of Jammu and Kashmir will be safe as they have now become a part of the country. Also many Muslim organizations also welcomed the decision as the move was with the interest of the Kashmiri people

PRESENT SCENARIO

After the revocation of article 370, the autonomous status of Jammu and Kashmir has been taken away .they will not have a separate constitution and flag. Now India have a common constitution and all the laws applicable to other parts of India are applicable to the the state of Jammu and Kashmir also. Jammu and Kashmir and Ladakh will be now two new territories. Jammu and Kashmir will be a union territory with a legislature while Ladakh will be a union territory without legislature. The governing of the Jammu and Kashmir will be similar to Puducherry.

The role of administration will be be taken by the governor as there is no legislative assembly. He will have the source of authority of the president. The MP of Ladakh , Jamyang Tsering

said in the loksabha that he hopes for the betterdevelopment of the Ladakh once things improve and complete order is restored in the state of Jammu and Kashmir8.

Prior to the abrogation, all the constitutional provisions were not applicable in the state of Jammu and Kashmir but now a total of 106 central laws will now be applicable to the state. Also some important legislations like the prevention of corruption act, the land acquisition act

, the national commission for minorities act , right to education will be applicable to them as well. And also article 35a which is also known as permanent residents law has been very discriminatory towards women. It forbided outsiders from buying land in Jammu and Kashmir. The provision also barred women from owning any property in the state if she marries any person outside the state of Jammu and Kashmir. The provision also barred their children from inheriting that properties as well. But the article has become void and now the women will have the property rights even if they marry an outside and the children can also inherit the same.

CONCLUSION

The state of Jammu and Kashmir has been an integral part of the country .Abrogation of article 370 was a historic move by the Indian government but it has lots of effects on the Jammu and Kashmir people both negatively and positively. The abrogation of article

370 will indeed change the very face of Jammu and Kashmir and will led to the emergence of new Jammu and Kashmir. Now more developments will happen in state in the fields of education, employment and tourism. Now they don’t have a separate constitution and all the laws existing in the country will be applicable to them as well. Also by the revocation of article 370, certain rights of the people of the affected areas are also effected. Article 370 was a temporary provision which was granted to Jammu and Kashmir during the partition and it should have been revoked long back itself but the way it was revoked was not right. It was revoked in a haste and also the BJP government did not discuss with the opposition party about the abrogation of article 370 which indeed resulted in huge protest. Article 35A which comes under the article 370, proscribes non-permanent residents of Jammu and Kashmir from permanent settling in the state ,buying immovable property, acquiring land, applying for government jobs o r any kind of scholarships, aids as well as other public welfare projects. The people of

J&K will now lose these benefits associated with permanent resident certificates. Also there are chances of land encroachment by people from outside Jammu and Kashmir, therefore government should take sufficient measures to prevent land encroachment.

SUGGESTIONS

· The court should have interfered the implementation by which affected the fundamental rights of the citizen mainly freedom of press, freedom of communication and movement. Even the court was reluctant to examine the legality of detention of the people in Kashmir.

· It also questions the morality of the constitution when the whole country decides about the state without the consent of the Jammu and Kashmir citizens.

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