Restructuring the Federal Status Of India & Kashmir
The issue of Jammu and Kashmir has gained international importance due to its impact on the political relationship between two major Asian countries, the indirect intervention of china adds to the importance of the matter. The recent lockdown of the entire valley for the implementation of the new Jammu and Kashmir reorganization act led to fresh allegations imposed upon the Indian government, the constitutional validity of the decision was challenged under multiple heads: The decision being in conflict with article 370 imposed in the state which cannot be amended(as· alleged) hence, unconstitutional in nature The decision leading to a situation unbearable for the people in Kashmir, lining it with direct· conflict over the fundamental rights guaranteed under the constitution. A conclusive approach has been taken in the study of the issue, the questions so asked needs to be answered conclusively through critical analysis of the facts, historical instances, political background, legal provisions, and moral ideologies. Jammu and Kashmir have been one of the most complex issues in the Indian political system. It directly challenges the secular nature of our country, the constant unrest in the Muslim majority area of Kashmir falls in direct conflict with the ideology of brotherhood and peaceful living entailed within the scopes of secularism. This over-sensitive nature of the issue has seen communal riots and use of military force against the people of Kashmir, the usage of such military force still remains under the radar, is it absolutely necessary to deploy forces and use guns for the establishment of peace in the valley? The state recently lost its special status through an order passed by the president which revoked article 370. The circumstances under which this decision took place has been subject to immense criticism, did the order stand constitutionally valid? If yes, what are the impacts it will have on the valley which has always been ridden off peace, is it the beginning of good things for the now disturbed state? Then home minister GulzariLal Nanda said in LokSabha on December 4, 1964: “it is article 370 which provides for the progressive application of the provisions of the constitution to J&K, article 370 is neither a wall nor a mountain, but that it is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will”3 Would barricading these tunnels provide us with the answers of all the queries related to the state? The problem of Jammu and Kashmir has always been viewed with a biased opinion either towards the government or towards the agitated and violent crowd amongst the peace-loving locals. There has been no neutral approach towards the analysis of the issue which could render a result in the favour of the either through substantial claims which are adhered by truth and facts, not by mere opinions. There stands no straight jacket formula to determine the condition of people in Kashmir, there has to be a comparative study conducted in the light of the condition which pre-existed and the modern developments which has taken place in the valley. There should be a prospective study of the reorganisation of the state, its current and future impacts. It shall also establish whether the decision to revoke article 370 was constitutionally invalid or not? FEDERAL STRUCTURE OF INDIA & KASHMIR Before coming down to the primary question of constitutional validity of the decision revoking specialstatus of Jammu and Kashmir, we need to understand the nature of constitutional mechanism which is followed in our country, India is the largest democracy of world, exercises a federal structure. What exactly is a federal structure and what meaning and implications does it impose over the running of a democratic country? It is the distribution of power between the central, state and local government in a country. India has a federal structure as the power albeit not equally but still is distributed amongst the central, state and the local authorities. The nature of federalism we exercise is asymmetric in nature which an unequal distribution of power amongst the authorities.Jammu and Kashmir stands as the best possible example of asymmetric federalism, the special status of the state was recently revoked by a special order passed by the president, the decision has been under scrutiny by many experts deeming it unconstitutional in nature. The special status was provided to Jammu and Kashmir under article 370, “it exempted J&K from the Indian Constitution and permitted it to draft its own constitution, also restricting Parliament’s legislative powers in the state. J&K’s state legislature was free to draft its own laws, except in the areas of communications, defence, finance, and foreign affairs. As a result, the state had its own Constitution, flag and penal code.”4 The article was included in the constitution on October 17, 1949, it has been deemed to hold a ‘temporary status’ which makes it open for amendment and further changes as the legislature deems fir, although article 370(3) confers right upon the president to modify or declare the article inoperative, the clause further states that this decision is subject to recommendation of the constituent assembly of the state. The complexities arising out of the fact that “the state’s constituent assembly, after drafting the state’s constitution, had been dissolved on January 26, 1957. This had led to some legal scholars and experts arguing that Article 370 could never be repealed or modified.”5 Since the status of article 370 has been put under question, it is explicitly mentioned in the constitution to be a temporary provision. The supreme court has had views that cannot be said to be in sync with the general interpretation of the constitution with regards to article 370. In a ruling passed in the year 1969, the status of the article 370 was established by the supreme court to be permanent in nature as it never stopped to be operative in nature, in a similar hearing in April 2018, the supreme court held firm its views on article 370. As the status of the article has been said to be continuing and permanent in nature albeit constitution allowing a change in the same, could the supreme court be given more importance over the literal words of the apex document which governs this nation? The ruling government had an upper hand as article 370 was subject to change as per the provisions mentionedcommunication and networking services were put under seizure until further notice. Section 144 Cr.PC was invoked in the state, all the colleges and institutions were shut down. This was a step to avoid any changes of riot commuting in the state, the government took extreme measures and were unjustified in their handling of the issue. These restrictions are inappropriate and not proportionate with the rights and liberties guaranteed to the people of Kashmir as per the constitution of India. Under any circumstances no matter how rough they may get, certain rights have to be made available and respected. Our government has failed to recognize these rights in the light of tick marking their portfolios. “Most believe that this measure may achieve the very Hindu right-wing extremism that so pervades regions outside of Kashmir, but Kashmiris – from successionists, civil society, opposition leaders, to separatists – are now united in their censure of this decree.”8CONCLUSION The decision to scrap the special status of the state is socially and economically correct if not politically. The methods of implications are again subject to criticism as it suggests, clouds of malafide intentions and political gain hoovers over the ruling government. Deployment of 35000 armed personnel in the most heavily militarized state of country is obnoxious. After the commencement of the order and the bifurcation of the state into separate union territories of Jammu & Kashmir and Ladakh, plethora of opportunities are up on offer to be explored. The development of the valley can lead to a surge in tourism and economy. With the amalgamation of social culture, chances of separatist and militant movements would dwindle and lead to a better environment for everyone who“PT Kunzang, President, Ladakh Buddhist Association, “First I want to congrats all the citizens of Ladakh, as Ladakh today achieved UT status.Ladakh’s UT demand is a very old demand; it was first demanded in 1949 and today we are extremely happy that after 70-80 years our demand has been fulfilled. I also want to thank Modi Government for the move.”15 “Top Muslim body JamiatUlama-i-Hind (JuH) passed a resolution stating that Kashmir is an integral part of the country and said the welfare of the people in valley lies in the integration with India”16with such integrity and communal unification displayed by the country, the chances of Pakistan trying to fulfil their share of interest in the territorial dispute over the state will also diminish and remain farfetched dream. In spite of the criticism and backlash faced by the government, a good decision has been taken in favour of the country and its most disputed and loved part. Things will settle down and become calmer with time, the method of implication still remains unanswered and might never find an actual answer, people will look the progress this region makes in the coming years and will forget the controversies it had entailed within it.
Author: jageshwar pateriya,
jagran lakecity university/student