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KASHMIR: THE LAND OF BATTLE

(Abolition of article )

INTRODUCTION

Article 370 of the constitution of India relating to the state of Kashmir is now seventy-year-old. The constitution came into force with this unique provision on 26 January 1950. Article 370 which was believed to be untouchable, unamendable got abolished on 5th August 2019 taking away the special status of Jammu and Kashmir.

Before revocation article 370 can be explained as:

  • The name, borders, space of Jammu and Kashmir can never be changed without the permission of state legislatures.

  • If the union government wants to apply any law in the state then it had to take approval from the state government.

  • There are two flags of Jammu and Kashmir i.e. the Indian flag and the state flag of Kashmir.

  • Indian citizens other than the citizens in Kashmir cannot buy property in the state.

  • Residents of Kashmir have two citizenship i.e. one Indian citizenship and other the sate citizenship.

  • DPSP is not applicable in Jammu and Kashmir.

  • A National emergency can be imposed after taking state government’s permission but only in case of war and external invasion.

  • The President cannot use his power of declaring a financial emergency in the state.

  • Only people of Kashmir were allowed to elect the state government.

Article 370 is included in Part XXI of the Constitution: Temporary, Transitional, and Special Provisions. After the establishment of the constituent assembly of the state, it had the power to endorse the articles of the Indian constitution that must be applied to the state. After discussing with the constituent assembly, the president gave the order mentioning articles of the constitution and that was issued in 1954 and carried out to the state, Before the constituent assembly recommend the abrogation of article 370, it got dissolved and article deemed to be the permanent feature of the Indian constitution. A certain amount of autonomy was allowed to the state like its own constitution, law-making power, and separate flag. As a result of article 370, the state could make its laws regarding anything like fundamental rights, property rights residency, etc. The state had put bars on buying and selling of land in Kashmir to other Indians outside the state.

Article 35(A) which is always attached along with article 370 defines the ‘permanent residents’ of the state Jammu and Kashmir and what makes them different. It is applied to all Indian Kashmiri. All residents who are identified are issued with a permanent resident certificate, which enables them to benefits related to employment, education, and other rights. But the right to buy property in the state is the biggest advantage for the permanent residents. People who are living in the state of Jammu and Kashmir on 14 May 1954 i.e. when the law was passed and people who are living in the state for the past 10 years, were the permanent residents. The definition of the permanent resident can be changed with the majority of two-third by the state legislature.

Prime minister of India, Jawaharlal Nehru with his colleagues discussed with the prime minister of Jammu and Kashmir for 5 months on Article 370. Jammu and Kashmir was the only state to negotiate the terms of membership with the union. On 17 October 1949, the constituent assembly gave their approval to draft agreed terms and conditions between the union and the state. Neither the state nor the union can amend or abrogate it, except by the provisions. Mr. P. Chidambaram, Union home minister in 2010 acknowledged that in unique and special circumstances Jammu and Kashmir had acceded to India. He said that the state is special and the problem is different from others, so it requires a different and special solution”.


Article 370 recognizes the unique status of the state of Jammu and Kashmir in terms of independence and its capacity to define laws for the state's permanent residents. Within the 1954 Presidential order, the Basic Rights within the Indian Structure were made pertinent to Kashmir with exceptions. Afterward, corrections state Cottrell, altered the pertinence of essential human rights within the Indian Structure to lasting inhabitants of Jammu and Kashmir. The state committee supports modification and also includes "preventive confinement laws" that are excluded from human rights difficulties for a quarter-century.

Advance, the state gave extraordinary benefits to the lasting inhabitants in things such as home, property, instruction, and government employment, which were inaccessible to others. Article 35A of the Indian structure has been deciphered by a few Kashmiri authorities to forbid challenging any state law, only on the grounds of infringing upon rights, granted to all citizens of India.

WHY IS KASHMIR ALWAYS THE ISSUE?

Kashmir is in the Himalayan region and covers about 138 sq km. It is also called ‘Jannat’ that is heaven formed with beautiful lakes, snow cover mountains, etc. Kashmir was in power and challenged even before the independence of the two countries. During the partition, the Indian Independence act made Kashmir was free to choose India or Pakistan.

The local ruler of Kashmir, Hari Singh, wanted Kashmir to be independent but in 1947 Kashmir joined India and asked for its offer assistance against an attack from Pakistan.

A war ejected and India asked united nations to join together. The Joined together Countries suggested holding a plebiscite to settle the conflict of whether the state of Jammu and Kashmir would connect India or Pakistan. Be that as it may, the two nations were not ready to give up on the state and not agreeing on the same terms. In July 1949, India and Pakistan marked an agreement to set up a ceasefire line as prescribed by the unites nations and the state got to be partitioned. In 1965 another was. In 1999, India battled a brief but severe struggle with Pakistani-backed forces. Till this time, both the countries announced themselves to be nuclear powers.

After gaining independence from British in 1947 and the partitioning of the region into the dominions of India and Pakistan, the state of Jammu and Kashmir was one of the princely states which were not under the control of British administration and maintained their autonomy so that they can manage their affairs (excluding the area of defense and foreign relations). The method of dividing British India was administered in the 1947 Indian independence Act. Princely states did not join either domain, and section 7(1)(b) of the Act given that “suzerainty of His Majesty” over these states had slipped by and its powers had been returned to them.

They were allowed the choice to remain autonomous or acquiesce to either domain. On article posted that “independence of princely states was not an option without the help of British for their defense when most of them were small. The states were encouraged by then-Viceroy Lord Mountbatten to accede to one dominion or the other” and also based on their topographical position, religion, etc. A few regional picks up within the Kashmir locale were made by India in 1971 amid the war between the two nations over the severance of East Pakistan (Bangladesh), which finished with the marking of the Shimla agreement on July 2, 1972. The agreement stipulated that the nations are to “settle their conflicts by tranquil implies through respective negotiations” and precluded either nation from “unilaterally altering the situation.” Besides, the 1949 ceasefire line got to be the line of control – a de facto border between the zones controlled by the two countries. Over a long time, the locale has been entangled in numerous border engagements, a huge war in 1999 (Kargil war) between the nations, and a Pakistan-supported radical in Jammu and Kashmir that has existed since 1988. As of now, the Indian government declares that Jammu and Kashmir is an “integral portion of India and could be a matter entirely inner to India” and any debate with Pakistan ought to be settled reciprocally. Pakistan, on the other hand, takes the position that India’s later activities are a “violation of the U.N. Security Chamber resolutions on Kashmir and respective Pakistan-India agreement, such as the 1972 Shimla agreement and the Lahore Declaration” and wishes to internationalize the debate in a worldwide gathering.


HOW WAS KASHMIR’S SPECIAL STATUS REVOKED?

On 5 August 2019, the government shocked everyone by revoking article 370 and article 35A of the Indian constitution which gives special status and power to Kashmir. Somehow this article Was the reason behind the complex relationship with India after independence. Few days before the announcement thousands of extra Indian troops were conveyed, a major Hindu journey was cancelled, schools and colleges were closed, visitors were requested to take off, phone and web administrations were suspended and political leaders were house arrested and justified their actions by saying it will help the individuals of the state to get to government programs such as reservation, right to instruction and right to data.

An order was issued by the Indian president under the control of Article 370, abrogating the winning in 1954 by Presidential Arrangement and invalidating almost all the provisions of independence allowed to the state. A ‘reorganization bill’ was passed by the home minister of India in the parliament, looking to the partition the state into two union regions to be administered by a lieutenant representative and a unicameral council. The bill took the special status of the state of Jammu and Kashmir given by article 370 of the Indian constitution and it was passed by the Rajya Sabha which is the upper house of the parliament of India on 5th august 2019. On the next day i.e. 6th august 2019, the lower house of the parliament which is Lok Sabha discussed and then passed the reorganization bill which suggested the revocation of article 370.


The order issued by the president in August stated the provisions of the Indian Constitution that will apply in Jammu and Kashmir. This means that Jammu and Kashmir’s separate constitution was revoked and the same constitution to be applied all over India. The Government of the State issued the order. This in impact implied the concurrence of the Senator of Jammu and Kashmir since President's rule. Article 370(3) allowed the Indian president to announce the article ineffective with special cases and adjustments if prescribed by the (non-existent) state constituent gathering to do so. Article 370(1) gives the power to the president to innovate and modify the Indian constitution relating to Jammu and Kashmir. Therefore, the president delivered a new clause in article 367, suggesting the interpretation of the Indian Constitution. He changed the phrase ‘Constituent Assembly of the State’ with ‘Legislative Assembly of the State’. Due to the temporary removal of State legislative, any connection with the legislative meeting can be construed as a connection with the Governor of Jammu and Kashmir. The governor is a deputy of the Central government. In this manner, the Indian Parliament presently capacities for the state administrative gathering.

Hence, the home minster moved a decision within the Rajya Sabha to offer the President the necessary suggestions he desires to claim Article 370 as inoperative. the statutory resolution stating the revocation of article 370 and the reorganization bill was discussed and handed via the Rajya Sabha with 67% votes in its favour and 33% in opposition to the bill. Then On 6th August, the bill was passed by the lower house of parliament with 86% votes in the favour and 14% against the bill, and finally, the bill got 351 yes and 72 no and was passed.


WHAT CHANGES HAVE BEEN MADE ON THE LAND OF KASHMIR?

After the revocation of article 370 of the Indian constitution, Kashmir will not have a separate constitution and will be the same as other states. All the provisions, laws, rules which were being followed by other states will now be followed by Kashmir too in the same way. Before revocation of article 370 people from outside the state were not allowed to buy property in Kashmir but now every Indian citizen is entitled to buy property in Kashmir. The state will be divided into smaller parts, one will be Muslim majority i.e. Kashmir, second will be Hindu majority i.e. Jammu and third will be Buddhist majority i.e. Ladakh. While Ladakh will not have its own legislature but Jammu and Kashmir will have their own legislative assembly but their legislative assembly will not be allowed to pass any law relating to ‘police and public order’. The only largest party within the assembly will shape the government, which a chief minister will head and it will be a five-year term and not six which was before revocation. A Lieutenant governor will administer both Union regions. currently, out of six seats in Lok Sabha with the state, five will stay with the union domain of Jammu and Kashmir, whereas one will be of Ladakh.


Let’s just simply point out the changes:


  • No separate constitution, no different flag or anthem, no dual citizenship.

  • All the fundamental rights, law, the provision will now be the same which will include the right to information act, right to education act.

  • Now the president can issue a financial emergency by taking the state’s permission. And national emergency can also be declared without the state’s permission.

  • Ranbir penal code will be removed and only the Indian penal code will be applied.

  • People from outside the state can buy property in Kashmir now.

  • Article 35(A) will be null and void. And if a women’s children are married outside the state, now they will not lose their property rights.

  • Elections will be held in the same way as other states.


WHY WERE THE CHANGES MADE?

The government believed that revoking article 370 and article 35(A) will be for the state’s development. They said that the state has a complex relationship with the rest of the country for the last 70 years and the reason seems to be these articles that separate them from others. Once the home minister of India, Mr. Amit Shah said “it is article 370 and article 35(A) that there is no full democracy in the state, an increase of corruption and no development is the result of these articles”

So, the main reason which was told by the ruling party was that they wanted the state to develop, and as article 370 puts restrictions on them so it was important to revoke that article for the betterment of the country. They believe that they can save Kashmir in the best way if they get rights in the state. Some believed that is was a religious motive, Kashmiris also thought that the BJP anyway wants to edit the demographic character of the Muslim majority region by letting people outside the state buy property in the state.


IS THE REVOCATION OF ARTICLE 370 CONSTITUTIONALLY VALID?

It was the constituent assembly, who could recommend the revocation of article 370 and also the article of the constitution of India which will be applied to the state. But the constituent assembly itself got dissolved without giving the recommendations. It drafted the state’s constitution and then got dissolved. Article 370(3) allows the president to amend the state’s provisions and scopes. The prime minister surely took advantage of this clause and extended all the provisions of the Indian constitution to the state of Jammu and Kashmir through the president’s order. Clause 3 may permit the president but still, there was a legal battle to revoke article 370 and exist with some exceptions which were to be recommended by the constituent assembly but it was dissolved in 1957 on 26 January so it was believed the article 370 can never be changed. On 5th August 2019, the president issued an order saying that “constituent assembly of the state” should be “legislative assembly of the state”. Since the assembly was temporarily removed the “concurrence of the governor” was recognized as “concurrence of legislative assembly” of the state.

The Delhi High Court refused a petition in 2017 which was demanding to cease article 370. The Supreme Court of India in 2018 ruled that despite article 370 include the word temporary, it is not temporary. The same court said that article 370 can never be revoked.

The legal validity of the order given by the president has divided the constitutional expert’s opinion. A.G Noorani who is one of the constitutional experts once said that it is completely against the constitution. In 1957 when the constituent assembly dissolved without recommending the revocation of article 370, it was observed that the power to revoke article 370 was destroyed. MP Abhishek Manu Singhvi said that “the resolution was legally pure and cannot be justified by any argument”. “Any plea which is against the resolution of revoking article 370 will not be successful”- this is what Advocate Rakesh Dwivedi believes. Former secretary-general of Lok Sabha agreed with advocate Rakesh Dwivedi by saying that the state is controlled by the union, the parliament can be treated as the legislature of the state, therefore, state government’s approval is not required to make changes.


WHAT HAPPENED AFTER 5th AUGUST 2019?

According to news reports, 14 public interest litigations were registered in the Supreme Court of India on this matter. Few petitions were related to challenging the revocation of article 370 and Jammu & Kashmir’s special status and few petitions were demanding to end the restrictions on movement and communication that was imposed in Kashmir after the breakdown of article 370. The Five-member bench was appointed by the supreme court on 28 august 2019 that will hear all the petitions relating to this matter.

A news report said that a petition was filed by the Jammu and Kashmir People’s Conference (JKPC), a political party in the state which was challenging the presidential order on article 370, and Supreme Court agreed to entertain their petition but refused all other petitions. After hearing several petitions by the 3-panel judges, the chief justice of the supreme court of India said that they will try hard and will surely bring back the normal life of the state Jammu and Kashmir. According to a news reported, the court gave 28 days to the central government to reply to all the petitions relating to the state of Jammu and Kashmir, and on Oct 1, 2019, stated hearing on the above matters.

After the announcement of the changes in article 370 the state was under lockdown, the public movement was banned, school and colleges were shut down, internet service was banned. Omar Abdullah and Mehbooba Mufti, the two former chief ministers of the state were under house arrest after the announcement. Many leaders twitted about their disappointment on the decision made for the state. In a huge amount, the protest was done in Kashmir against the revocation of article 370. Thousands of troops were sent to Kashmir to control the backlash of the revoke.


CONCLUSION


Before 5th august 2019, it was believed that Article 370 and Article 35(A) of the Indian constitution can’t be amended. It gave the state of Jammu and Kashmir a special status, which allowed the state to have their own constitution, flag, anthem, law, and rules. But on 5th august 2019, BJP took a long jump and revoked article 370 and made the state equal to other states. The party had a strong reason to do so which was to develop the state and support it even more. This decision was surely opposed by some and also supported by some. People in Kashmir were not at all happy with the decision but now they have to live with it. Now that the state will be handled by the union, the laws, provisions will be updated, the state will develop as it was flowing the old 90’s rules only. Kashmir no longer enjoying the special status, no more different flag, anthem, constitution, now everyone can buy property in Kashmir, a financial and national emergency can be declared by the president with state government’s permission.

As it was reported by the news, to impose the new rule the state was shot down, school and colleges were closed, internet services were suspended, state leaders were house-arrested. The Protest was done by the people in Kashmir to show their anger on the decision made. Clearly, it was done against the will of the people in Kashmir. The Future always tells whether the decision taken was right or wrong. According to me it was a good decision Kashmir is very much part of India and it should be treated as a state of India. I do believe with all the good things in this decision there are some disadvantages to the people in Kashmir. After enjoying the special status and complete freedom to the state government for over 70 years it might be tough to expect new laws. There was a reason to give Kashmir a special status as it was one of the princely states and was not under British rule. It was the only state who negotiated with the union to join India. Today also there is a fight for Kashmir between the two nations. So, in the end, I want to conclude my research by saying that good things come with some bad news and I do believe that article 370 was the reason separating India from Kashmir and It was important to change it.



REFERENCES







By:

Varda Khan

5th Year (2017-2022)

Amity Law School,

Amity University, Noida


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