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Revocation of Article 370
Aug 09, 2019 By Sachin Sagar S J
On 5 August 2019, the Government of India revoked the special status, or limited autonomy, granted under Article 370 of the Indian Constitution to Kashmir, a region administered by India as a state which consists of the larger part of Kashmir which has been the subject of dispute among India, Pakistan, and China since 1947.
Among the Indian government actions accompanying the revocation was the cutting off of communication lines in the Kashmir Valley, a region gripped by a prolonged separatist insurgency. Several leading Kashmiri politicians were taken into custody, including the former chief minister, Government officials described these restrictions as designed for preempting violence,]^ and justified the revocation for enabling people of the state to access government programs such as reservation, right to education and right to information.
The reaction in the Kashmir Valley was effectively reduced to silence because of cut-off communication. Many nationalists celebrated, declaring the move to herald public order and prosperity in Kashmir. Among political parties in India, the revocation was supported by the ruling Bharatiya Janata Party, and, among others, by the Bahujan Samaj Party, the Aam Aadmi Party, AIADMK, Telugu Desam Party, YSR Congress Party, BJD and the Shiv Sena. It was opposed by the Indian National Congress, Jammu & Kashmir National Conference, Jammu and Kashmir Peoples Democratic Party, Trinamool Congress, Janata Dal (United) and the DMK. In Ladakh, people in the Kargil area, who
are Shia Muslim and form the plurality of the population of Ladakh, protested; however, the Buddhist community in Ladakh supported the decision.
The President of India issued an order under the power of Article 370, overriding the prevailing 1954 Presidential Order and nullifying all the provisions of autonomy granted to the state. The Home Minister introduced a Reorganization Bill in the Indian Parliament, seeking to divide the state into two union territories to be governed by a lieutenant governor and a unicameral legislature. The resolution seeking the revocation of the special status under Article 370 and the bill for the state's reorganization was debated and passed by the Rajya Sabha – India's upper house of parliament – on 5 August 2019. On 6 August, the Lok Sabha – India's lower house of parliament – debated and passed the reorganization bill along with the resolution recommending the revocation
As a subject is very attractive. The name of Kashmir as per folk etymology means ―Desiccated land‟. A great source of history of Kashmir, Rajatarangini, tells us that Kashmir valley was Formerly a lake. The great Mauryan emperor Ashoka is often credited with having founded the city of Srinagar. The city of Jammu was founded by Raja Jamboolochan in 14th^ century B.C. Kashmir once a beautiful country, a great seat of learning was known to ancient Greeks and Romans. It was once known as paradise on Earth, borders with India, Pakistan, Afghanistan, USSR and China. The earliest known inhabitants of Kashmir were Nagas around 2000 B.C. The Khasas, Dars, Bhuttas, Damars, Nishadas etc appeared later. Kashmir was ruled by several dynasties, the first known king of Kashmir was Gonanda. His successors were weak. The more known rulers after Gonanda-II were: Ashoka (273-232 B.C.), Kushan dynasty (around 100 C.E.), Mihira-kula (515-550 C.E.), Karkota dynasty (631 C.E.), Lalitaditya (724- C.E.), Avantivarman (855-883 C.E.), Uptala (upto 939 C.E.), Vyasaskaradeva (939- C.E.), Parva Gupta (949 C.E.), Ksema Gupta (950-958 C.E.), Didda (958-1003 C.E.),
For decades, an uneasy stalemate has prevailed, broken by occasional military incursions, terrorist attacks and police crackdowns. But on Monday, the Indian government decided to permanently incorporate the territory it controls into the rest of India.
The administration of Prime Minister Narendra Modi revoked Article 370 of the Indian constitution, a 70-year-old provision that had given autonomy to the state of Jammu and Kashmir, which includes the Hindu-majority area of Jammu and the Muslim-majority Kashmir valley.
The government also introduced a bill to strip the region of statehood and divide it into two parts, both under direct control of the central government.
But Mr. Modi, a Hindu nationalist, had campaigned for re-election in part by stoking patriotic fervor against Muslim-led Pakistan. He promised the full integration of Kashmir, a cause which his party has championed for decades, and now he is delivering on that pledge.
Pakistan condemned India‘s moves. Pakistan‘s prime minister, Imran Khan, called on President Trump to follow through on an offer he made two weeks ago to mediate the Kashmir dispute.
The provision of the Article was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted ‗iron clad autonomy‘ for the state, which Centre did not comply with.
According to this Article, except for Defence, Foreign Affairs, Finance and Communications, Parliament needs the State Government‘s concurrence for applying all other laws. Thus the state‘s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
In 1947, the sudden separation of the area into Pakistan and India prompted millions of people to migrate between the two countries and led to religious violence that killed hundreds of thousands. Left undecided was the status of Jammu and Kashmir, a Muslim- majority state in the Himalayas that had been ruled by a local prince. Fighting quickly broke out, and both countries eventually sent in troops, with Pakistan occupying about one-third of the state and India two-thirds. The prince signed an agreement for the territory to become part of India. Regional autonomy, which was formalized through Article 370, was a key inducement. Despite efforts by the United Nations to mediate the
First, the erstwhile language of Article 370(3) did not allow the President to amend it without the concurrence of the Constituent Assembly; therefore the government cleverly changed the meaning of the expression ‗Constituent Assembly‘ itself, to the ‗Legislative Assembly of the State‘.
Second, since the last few months, J&K has been under the Governor‘s Rule which means that the Governor has the power to assume to itself the functions and powers of the Government of the State (Section 92, Constitution of J&K). The central government can argue that since, the powers of the Government of the State were currently with the Governor (including powers of the Legislative Assembly), he could grant consent as required under Article 370 for ceasing the operation of the provision.
The Presidential Order is tantamount to the President doing indirectly what he cannot do directly i.e. amending Article 370 through Article 367 because he has no power to amend Article 370 directly. This is problematic.
The government‘s action is, from a legal standpoint, clever. But it is perhaps a bit too clever as the abrogation of Article 370 was a historical promise. Prime Minister Nehru himself agreed that Article 370 would be rendered obsolete by the passage of time. The abrogation move may bolster the government‘s ability to make the fruits of India‘s economic progress directly available to Kashmir. Yet, the manner in which this has been done is unlikely to inspire trust in the ordinary Kashmir and may well cause lasting damage to the tradition of constitutional propriety.
In sum, a purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its
people. The bifurcation of States in the past cannot be cited as a binding precedent as, under Article 3 of the Constitution, the President seeks the views of the legislature of the States concerned, even if concurrence is not mandatory. In the present scenario, J&K has been represented by an unelected Governor appointed by the Centre, while Parliament has ventured to ratify the conversion of a State into two Union Territories without any recommendation from the State. Geographically and metaphorically, Jammu and Kashmir is the crown of secular India — a Muslim majority region in a Hindu majority country. Its people and leaders had chosen secular India over Islamic Pakistan, a fact that Islamists never reconciled with True, the special status of J&K was meant to end, but only with the concurrence of its people. The Centre‘s abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown reveals a cynical disregard of democratic norms.
The need of the hour is to devise a logistic interpretation of the relevant clauses to the article, keeping in mind the intention of the framers of the constitution. By creating a provision for amendment, its framers never intended to bestow the operation of Constitution with absolute rigidity but to provide for a bit of flexibility to keep pace with the ever changing needs of the society and to serve the ends of justice. Amendment of Article-370, as per the present circumstances is a myth as of now but this situation can be easily dealt with using logistic approach and can be very diplomatically modified to a reality.
Books Referred:- H. M. Seervai, Constitutional Law of India D. D. Basu, Shorter Constitution of India M. P. Jain, Indian Constitutional Law P. M. Bakshi, Bare Act, Constitution of India Oxford Dictionary of Law Mitra's Legal and Commercial Dictionary. Wikipedia- https://en.wikipedia.org/wiki/Wi-Fi
