Reprimands and Reformation: A Tale of Article 370

Reprimands and Reformation: A Tale of Article 370

Magna Mishra Animesh Mohanty | Aug 12, 2019

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5th of August 2019, a day which changed the course of Indian Polity and opened a new chapter in the history of Jammu & Kashmir, the honorable Home Minister, Shri Amit Shah tabled the Kashmir Reorganization Bill in Rajya Sabha. The bill was passed in both the houses of the Legislative Assembly with a thumping majority and will come into force on the date when the Government Gazette regarding this is published. As the Government Gazette regarding the bill is not yet published, it will be immature to go into the details of the bill and its various provisions. Still, we have tried to bring forth the issue surrounding article 370 and 35(A) before the NITR audience and inform them how any change can impact their lives and the nation at large. Many of the students might be wondering how can this move by the parliament affect their lives.  Let us see how article 370 came into being and its historical underpinnings.

Taking a peek into the History

Jammu and Kashmir was a part of the British Dominion of India before independence. When the entire Dominion became free from British rule so did Jammu and Kashmir. It became a sovereign state under Maharaja Hari Singh, despite being advised by many of his councilors and prominent politicians of both India and Pakistan to join either of the two newly carved countries, Maharaja Hari Singh maintained that J&K shall continue to be a free state. Pakistan, with ill intentions, began a full-scale invasion of Kashmir and had taken control of much of western Kashmir. This worried Maharaja Hari Singh who then agreed to sign the Instrument of Accession(IoA) of Jammu and Kashmir state to the Union of India. Clause 7 of the IoA signed by Maharaja Hari Singh declared that the state of Jammu & Kashmir shall not be forced to accept the Constitution of India and shall have the right to draft and implement its constitution. This gave rise to the infamous article 370, by which the state government had the power to decide which powers it will extend to the central government.

The Presidential order of 1950, officially The Constitution (Application to Jammu and Kashmir) Order, 1950, came into force on 26 January 1950 along with the constitution of India. It specified the articles and subjects of the constitution of India which were in concurrence with the Instrument of Accession as provided by article 370 clause b (i).

 The Presidential order of 1952 abolished the monarchy in the state of Jammu and Kashmir and made the President of India be recognized as The Maharaja of Jammu and Kashmir henceforth. This order also gave the recognition of Sadr-i-Riyasat to the state Legislative Assembly.

The Presidential order of 1954 sought to implement the 1952 Delhi Agreement. By this order, all the permanent residents of Jammu and Kashmir were given Indian Citizenship. Article 35(A) of the Indian constitution was implemented empowering the state Legislature to make laws regarding the privileges of permanent residents concerning the immovable property in the state. Through this order, the fundamental rights as enshrined in the Constitution of India were also extended to the people of Jammu and Kashmir.

Special provisions under article 370

Article 370 was drafted in part XXI (Temporary, Transitional and Special Provision) of the Indian Constitution. It is designated as a temporary provision of the constitution and hence could be scrapped by the process described in the article itself. According to clause (3) of Article 370, the president is empowered to scrap the article on the prior recommendation of the constituent assembly of the state referred to in clause (2) of the article. Many of you may be wondering, then how could the Modi Government change the status quo of J&K by itself as the state is under President’s rule and there is no Constituent Assembly to give the recommendation? This is where the beauty and the complexity of Indian Polity and our Constitution lies.

The parliament first amended article 367 of the constitution to replace Constituent Assembly with the phrase, Legislative Assembly. As the State is under President’s Rule, The Governor of the state becomes the State Government for all official purposes. By article 356, as the State is under President’s Rule, the Parliament( National legislative) is empowered to make decisions about the state. So, first, President Ram Nath Kovind issued a presidential order under Article 370 clause (1) with the concurrence of the State Government, which in this case is the Office of the Governor of J&K. This order superseded the 1954 order which meant that the Constitution of J&K stood abrogated. To scrap article 370 altogether with its special provisions the parliament (playing the role of Legislative Assembly of J&K as it is under President’s Rule by article 356) voted upon its various clauses and the Kashmir Reorganization bill was successfully passed by both the houses of the parliament.

Special Provisions of article 35(A)

Article 35(A) made the Jammu and Kashmir State Government the sole authority to decide on permanent residentship of citizens. It empowered the J&K state Government to make special laws providing privileges and more rights to the Permanent Residents. It allowed the state government to make laws regarding employment in state services, granting scholarships, acquisition of immovable property in the state and settlement in the state.

The Debate

Rajya Sabha was rife with arguments and discussions that day. What the presiding Government had done was through an order from the President himself, which was legally and constitutionally valid. After the issuance of the President’s order, home minister Amit Shah had proposed to do away with Article 370.

While discussing the bill, he justified his action by saying the following

I want to be very frank with the house today. I have put forth 2 bills and 2 resolutions which I hope shall bring an end to the bloody war going on in J&K. Before I discuss further,  I would like to remember the 41,000 brave hearts who have died in the violence since 1989. Many of my fellow legislatures spoke about the technical aspects of this reform but no one questioned what implications it has had on the valley and Ladakh.

He further added that it was because of article 370 that democracy never saw the light of the day in Kashmir whereas corruption had snowballed itself into a giant. He accused that because of the provision, poverty reached its peak and education remained underdeveloped. He urged the legislators to put aside their notions of “vote bank” politics if they truly want to understand how J&K has been affected.

Ghulam Nabi Azad, the opposition leader of Congress was against the scrapping of the article. In his words:

I had never imagined that my state will be put through something like this. Several people have lost their lives in the turmoil. By revoking the special status, the government has murdered the constitution.

While addressing the bill, Former Union Minister of Finance P Chidambaram said

In the constitutional history of India, it will be a black day. My persuasion will be a futile exercise but I speak for the future generation. Momentarily this might seem like a victory. You are wrong and future generations will realise what a grave mistake the house has made today. In the name of the people of India, I appeal to you. Don’t dismember J&K.

After the arguments, the motion was passed with a full majority. Here is the vote share

Parties in support of BJP for scrapping article 370 included BSP(Bahujan Samaj Party), BJD(Biju Janata Dal), AAP(Aam Admi Party), YSRCP(YSR Congress Party), AIADMK(All India Anna Dravida Munnetra Khazhagam), Shiv-Sena and rest of NDA(except JD(U)).

Parties opposing BJP included INC(Congress), JD(U)(Janata Dal-United), CPI-M(Left-front), AITC(All India Trinamool Congress), PDP(People’s Democratic Party), NC(National Conference)and DMK(Dravida Munnetra Kazhagam).

The Aftermath

Several rules were imposed immediately in the region. Some of which include:

  • J&K is now a Union Territory with a legislature.
  • Ladakh became a Union Territory without a legislature.
  • Ban on any public movement.
  • Suspension of schools and colleges for an indefinite period.
  • Suspension of mobile internet services.
  • Two ministers, Mehbooba Mufti, and Omar Abdullah were put under house arrest.
  • The flag of J&K is no longer official.
  • The Indian Constitution is now applicable in Jammu and Kashmir.

Initial reactions:

Negatives: Many feel that the history and integrity of Jammu and Kashmir are being compromised with. Others claim that the curfew, stringent security and house arrest of the leaders are uncalled for. Certain provisions such as reservation of jobs in the state government agencies and protection from Article 3 no longer hold for the state.

Opposition leaders such as Shashi Tharoor and Mehbooba Mufti tweeted against the same.

J&K’s Minister for ARI and Trainings, Sajjad Gani Lone said

It is the darkest day I or my ancestors have seen since 1957. I can’t believe that one fine day you woke up and find that you have been robbed of your special status. Now you are a Union Territory. All powers have been taken from you.

Positives:

Prime Minister Narendra Modi also shared his opinion on recent developments. He  said

Article 370 and Article 35A had only given terrorism, separatism, nepotism and massive corruption. These Articles were used as a weapon by Pakistan to inflame passions. This is the reason that in the last three decades, 42,000 people died and it brings tears to anyone’s eyes.

While addressing the Lok Sabha, BJP MP from Ladakh Jamyang Tsering Namgyal said

The decision of the Union government to revoke Article 370 is a historic step under the leadership of Prime Minister Narendra Modi to rectify the blunder that was created by the Congress leaders. Now the future of Kashmir, Ladakh and the nation is very bright.

To name a few positive impacts, As all the land in J&K will be available at very low prices to all the Indians, we can expect a spur in economic activity there and maybe even setting up of complex technical structures like manufacturing and processing plants in J&K. There are some industrial estates in Udhampur and Kathua region focussing on glass, plastics and building materials. These industries are now poised for steady growth. New Industries such as food-processing and forest product processing can also get a strong foothold in the valley. All these industries popping up in J&K will require Engineers to provide them with Technical Expertise, which means more job opportunities for all of us. Add to it the scenic lifestyle in Kashmir, this may turn out good for engineers who like mountains. More positives include:

  • Economic growth in the region is inevitable and more jobs for Kashmiri Youth will be created.

  • Some Draconian laws concerning Indian citizenship for Kashmiri women and their children will cease to exist.

  • This move should effectively nullify Pakistan’s claim on Kashmir.

  • Integration of J&K with the rest of India.

  • State public services can be extended to more meritorious and deserving candidates.

  • Ample opportunities for entrepreneurs and engineers as Kashmir is rich in natural resources and the area is poorly developed.

Team MM also approached Vasundhara Manhas, a 3rd-year student in the CSE department and a native of Jammu & Kashmir, for her comments. This is what she had to say,

I am very happy that the present government has decided to do away with article 370 and 35(A). Before this, Jammu and Kashmir was primarily ruled by only 3 families and all of them belonged to Kashmir region. There was no representative of Jammu and Ladakh region in the State Government which also meant that the Hindu representation in the legislative assembly of J&K was almost nil. All the money allocated by the centre was focused on Kashmir only and still that area remained poorly developed. Now I think that Jammu and Ladakh area will also get equal opportunity for development.

Conclusion:

In recent days, international media has put this issue under extreme scrutiny. The White House has maintained its ground and has encouraged dialogue between India and Pakistan. Pakistan claims that China has shown its support and has reassured Pakistan of “commitment”. The Chinese media show that China is neutral. While most Indians have welcomed the decision with open arms, others have felt that it is a violation of the constitution. Pakistan also has put all trade agreements with India on hold and has threatened to move to the UNSC with China’s support. Irrespective of what happens, it is imperative for India to stand together now.  This decision was taken to bring the serenity back to the rolling hills of Kashmir, to do justice to all those who were slain in the bloodshed and to flourish J&K and Ladakh. As fellow Indians, it is our responsibility to ensure that this decision upholds its cause.

 

 

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