This Article is written by Oishee Chaudhuri, student of Heritage Law College.
“Crown of India”, Kashmir is a destination that hails all across the globe. A beautiful and alluring valley situated in the midst of lush foliage and serene and pristine beauty. They have a unique culture, topography and renowned cuisine. The status of Jammu & Kashmir has always been one of immense deliberations and also one of turmoil. The history of Jammu and Kashmir dates back to the year of its establishment on May 14th, 1954 as a princely state. At the time of Independence, India was divided into many princely states. Jammu & Kashmir was initially one single political and geographic unit. Jammu & Kashmir was a State formerly, till 2019. Later, it gained the status of a union territory. Article 370 has been a fraction of Indian Constitution for a persistent span of time.
HISTORY OF THE STATUS OF JAMMU AND KASHMIR:
India gained independence in 1947 and there were 565 princely states and the then princely states had the choice of either integrating with India or Pakistan, though there was no prescribed form provided, a state so joining could specify the terms on which they would agree to join. 552 princely states signed the “Instrument of Accession” and remained with India whereas 13 princely states left to join Pakistan. “Instrument of Accession” is a treaty between the Government of India and the Maharaja of the princely state, dependent on the fulfillment of a condition. Jammu and Kashmir, being a then princely state had the choice of joining either the dominion of India or the dominion of Pakistan but Jammu and Kashmir chose to remain independent by signing a Standstill Agreement.
Maharaja Hari Singh was the then ruler of Jammu and Kashmir. In October 1947, Pakistan gradually started plotting against Jammu & Kashmir for annexation of territory. Pakistan sent army to annex territories and remove the Maharaja from his post. Jammu & Kashmir sensing trouble asked for assistance from India. India was willing to extend aid on the condition that the Maharaja of Jammu & Kashmir signed the “Instrument of Accession”. On 26th October, 1947 Jammu & Kashmir signed the Instrument of Accession and assimilated with India. India sent troops to secure the territories of Jammu & Kashmir and later India signed a ceasefire with Pakistan on the recommendation of the UN which ended the then dispute. Hence, Article 370 was introduced as a temporary provision to grant Jammu & Kashmir autonomy and special status.
HOW ARTICLE 370 CAME INTO BEING IN JAMMU & KASHMIR?
In the year 1950, Narasimha Gopalaswami Ayyangar, was chosen to be the chief drafter to construct Article 370 for Jammu & Kashmir which granted them autonomous powers and special status. The initial draft was provided by Jammu & Kashmir, after alterations and modifications to the original draft, Article 370 was passed in the Indian Constituent Assembly on 27th May, 1949. After Article 370 was embraced into the Indian Constitution, Ayyangar opined to a plebiscite and contended for a separate Constitution by Jammu & Kashmir’s Constituent Assembly. Article 370 is the passageway through which the Indian Constitution is applied to Jammu & Kashmir.
Article 370, is not without controversy as a limitation was also placed in the power of the Parliament to make laws for the State of Jammu & Kashmir. In July 1949, Sheikh Abdullah along with a few others as representatives of Jammu & Kashmir negotiated the special status of Jammu & Kashmir which led to the adoption Article 370.
REVOCATION OF ARTICLE 370:
The bone of contention arose when Article 370 was rescinded and declared ineffective by the Government of India on 5th August, 2019. Revocation means recalling or reversing an already established rule, law, agreement etc. The special status of Jammu & Kashmir that was granted under Article 370 was hence stripped after seven decades. The government called this move “the correction of a historical blunder”. The process of revocation was carried out very covertly. Jammu & Kashmir has always been an area of dispute because of its unique status and its political demography hence the presence of Indian troops on the streets is normalized and acceptable.
In spite of that, additional troops were deployed before the revocation, religious events were cancelled, schools were shut down, and tourists were requested to return. Moreover, telephone and internet services were suspended and state political leaders were placed under house arrest. Hence the government overwhelmed not only India but the entire world when it announced that they are scrapping almost all of the provision laid down under Article 370 and 35A, which had been an integral part of the Indian Constitution for the past seventy years.
LEGALITY OF THE REVOCATION OF ARTICLE 370:
It is so evidenced in our Indian Constitution under Article 370, section 3, that notwithstanding anything in the foregoing provisions of this article the President may, by public notification, declare that this article shall cease to be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification. On 5th August, 2019, the President of India promulgated an Order abrogating Article 370 which accorded special status to Article 370. As per the Order, the provisions of the Indian Constitution are now applicable to Jammu & Kashmir.
The dissolution of the state assembly in Jammu & Kashmir allowed the Government to circumvent the legal way out.
FEATURES OF ARTICLE 370:
- Article 370 grants the State of Jammu& Kashmir greater scale of autonomy than other states.
- This provision was temporary in nature.
- Jammu & Kashmir had two separate flags.
- Only residents of Jammu & Kashmir could buy and sell properties in the State.
- The Constituent Assembly is allowed under the special provision to make a separate Constitution and also they are empowered to decide on the extent of application of the provisions of the Indian Constitution on them.
- The residents of Jammu & Kashmir have dual citizenship.
- Article 356 and Article 360 was not applicable to Jammu & Kashmir and many more features.
After the revocation of Article 370, Jammu & Kashmir will no longer have any special powers, a separate Constitution, the Indian tricolor flag will be the only flag of identification, all the residents now will have a single citizenship, Article 356 and 360 will be applicable, minorities will be eligible for reservation, RTI will be applicable, people will have the right to sell and purchase land in Jammu & Kashmir. Thus, the impact of the revocation has been felt all across the world. All Indian laws are now applicable to Jammu & Kashmir. The Government claims it will bring development to the nation.
Article 370, has been diluted many times with the consent of the Kashmiris and the elected state governments to facilitate integration, better administration and good governance. Despite these dilutions, however, Article 370 bore great symbolic and psychological significance for Kashmiris. “According to official data, Kashmir witnessed 1,999 stone-pelting incidents in 2019 as compared to 1,458 in 2018 and 1,412 in 2017. According to recent estimates of the Multi-Agency Centre (MAC) 400 militants are active in the Valley, increasing the possibility of heightened insurgency activities in even border districts. The government backed its 5th August decision by putting the entire region under an unprecedented high-security grid and a communications blackout.” This unilateral decision of abrogation of Article 370 had instilled a sense of threat in the minds of the resident of Kashmir. There is still some upheavals as the residents are adjusting to their new way of life. According to reports, “On 16 August, announced that the government will lift lockdown and remove some restrictions in a phased manner in the Kashmir Valley. According to Reuters, phone services resumed in parts of Srinagar on 16 August 2019. Schools in the valley would reopen in the week of 19 August 2019. However, when some schools were opened in the valley, several media reported that children did not go to schools at all. According to Subrahmanyam, “12 of 22 districts were already functioning normally, and measures have been put in place to ensure zero loss of lives on any side or serious injuries to anyone. “ Some scholars also claim that the removal of restrictions will boost industrialization and economy which will lead to more employment opportunities. Local Horticulture and the food industry will also get a boost, including tourism industry among many other departments.
The aftermath of the abrogation of Article 370 has attracted attention globally. Normal life was immensely hampered. From the United States of America to China, most political leaders have either supported or negated the move by the Indian Government. There is still some uneasiness felt across, because of the vehement move to scrap an established order of affairs. There has definitely been a deep impact, where the modes of public convenience were unavailable; Section 144 was also imposed in Jammu & Kashmir. Despite that people do believe a new era has unfolded and there will be transformation through growth.
- ARVIND P. DATAR, Datar on Constitution of India 1233-1235 (1st ed., 2001) Wadhwa & Company Nagpur, India.
- Amit Shah explains how government has power to revoke Article 370, TOI, (August 5 2019, 4:41 P.M) https://timesofindia.indiatimes.com/india/amit-shah-explains-how-government-can-revoke-article-370/articleshow/70533361.cms.
- Ayjaz Wani, ‘Life in Kashmir After Article 370’, ORF Special Report No. 99, January 2020, Observer Research Foundation.