Revocation of Article 370 IAS Target

Revocation of Article 370

29 Oct 2020

Category : Daily Current Affairs

    Article 370 of the Indian constitution gave special status to Jammu and Kashmir, which was administered by India as a state from 1954 to 31 October 2019 and a part of the larger region of Kashmir which has been the subject of dispute between India, Pakistan and China since 1947, conferring it with the power to have a separate constitution, a state flag and autonomy over the internal administration of the state.
    The article 370 was drafted in Part XXI of the Constitution titled "Temporary, Transitional and Special Provisions". The Constituent Assembly of Jammu and Kashmir, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. In 1954 Presidential Order was issued, specifying the articles of the Indian constitution that applied to the state. On 5 August 2019, the Government of India issued a constitutional order superseding the 1954 order, and making all the provisions of the Indian constitution applicable to Jammu and Kashmir and declaring all the clauses of Article 370 except clause 1 to be inoperative. In addition, the Jammu and Kashmir Reorganization Act divided the state of Jammu and Kashmir into two union territories to be called:
    • Union Territory of Jammu and Kashmir
    • Union Territory of Ladakh.

    Article 370 has once again become a nation- wide controversy. Creating a highly militarist approach towards extremism, without asking for public opinion, shunning a political process, the union government made a strong move by removing Article 370 offered to Jammu and Kashmir since Independence.

    Differences on Article 370

    • Firstly, it was enjoyed by a State that remained divided between India and Pakistan while being ruled by a king.
    • Secondly, the constitutional provision applied to Kashmir which the only Muslim majority State.
    These two features should have made it all the very important to preserve the assurance maintained in Article 370. But for political reason, BJP government felt that uniformity and oneness is very important. The Bharatiya Janata Party manifesto for the 2014 general election has promise to revoke this special status to Jammu and Kashmir and the party pledged to integrate the state of Jammu and Kashmir into the Union of India. Now, since it won the second time, it decided to implement its promise.

    Article 370 and Federelism

    The Presidential Order for the bifurcation of the state into two union territories generated considerable debate in the recent past. Legally, the order changing interpretations of the terms Sadr-e-Riyasat and Constituent Assembly of the State to Governor and Legislative Assembly respectively. Furthermore, the President, in consultation with the Governor of J&K and the exercise of the power conferred to him under Article 370(1), declared that all the provisions of the Indian Constitution should apply to J&K. The current order applies all provisions of Indian Constitution to J&K without exceptions.

    Article 3

    Under article 3 Parliament is empowered to create a new state by separating an existing state or by uniting two or more states. Article 3 states that the President should refer the proposed legislation to the state legislature concerned to express its views. However, the opinion of the state legislature is not binding. For instance Parliament enacted the Andhra Pradesh Reorganisation Act, 2014, despite the rejection of the same by the state legislature. In J&K, the dominant elite in the Kashmir valley was criticized for its reluctance to share political and administrative power with the people of Jammu and Ladakh. Furthermore, unlike Andhra Pradesh/Telangana, militants from across the border often carry out large-scale terrorist attacks and the security environment in J&K is usually defined as “proxy war”.

    Article 370 has been a subject of intense debate in India since it adoption. On the surface, there was minimal consensus across the political spectrum on the provisions of the Article. Even within the state, many in Jammu and Ladakh repeatedly argued that Article 370 was being used to maintain and sustain majoritarianism of the Kashmir valley.

    Parliament to create new states/union territories under Article 3 and scrapping Article 370 justified because:

    • Ethnic majority in a province/state is unwilling to share political and administrative power with other ethnic groups
    • Parliament should intervene and make a decision based on the broader principles of justice
    • To address instances of regional discrimination

    Sub-regional ethnic demands for share in political power could be satiated if urban/rural local bodies are empowered, as envisaged in 73rd and 74th constitutional amendments with funds, functions and functionaries. Sadly many state governments are yet to strengthen representative institutions at the grassroots including Jammu and Kashmir.
    A five-judge Constitution bench of the Supreme Court is all set to commence on the crucial hearing on the challenge mounted to the legal validity of the Centre's abrogation of the provision of Article 370. While there is strong popular support for the government’s decision to declare Article 370 inoperative. The judiciary is duty-bound to examine the legality of the measures taken by the President and Parliament. The court will give strong legal verdict on the questions of constitutional importance, since it has a far-reaching implications for democracy and federalism. The communication in the state has been totally clamped down and people do not know what is in store for them. An undercurrent of panic prevails all over the state. In rest of the country, celebrations are running parallel among people who think Article 370 and 35A are the ones which have prevented the progress and peace in Kashmir.

    Article 35A

    Article 35A empowered the Jammu and Kashmir state's legislature to define "permanent residents" of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, issued by the President of India on 14 May 1954, under Article 370.
    The privileges offered to the resident of Jammu and Kashmir including:
    • the ability to purchase land and immovable property,
    • ability to vote and contest elections,
    • seeking government employment
    • availing other state benefits such as higher education and health care.
    • Non-permanent residents of the state, even if Indian citizens, were not entitled to these 'privileges'.
    On 5 August 2019, the President of India issued a Presidential Order, which imply that the State's separate Constitution stands inoperative, including the privileges sanctioned by the Article 35A. The legal pundits are raising a question as to whether Article 370 can be abolished, the way it has been done. The Constituent Assembly which formulated this special provision had the likes of Sheikh Abdullah, Jawaharlal Nehru and Sardar Patel among others. One of the provisions of the instruments of accession of Kashmir to India states, “‘nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution”. The legal position and the stand of Supreme Court in the matter will be extremely crucial in deciding the final fate of these articles and the status of Kashmir.

    Modi regime will be remembered in Indian history because:

    • First the time in the history of the Nation, a state has been downgraded to a Union territory.
    • All the major leaders of the state have been imprisoned or are out of contact with the people of the state.

    Background:

    When India became independent the princely states were given the option to either remain independent or merge with India or Pakistan. Most of the princely states did merge with India. The problem arose in cases of Junagadh, Hyderabad and Kashmir. In matters of Kashmir, the King was Hindu, Raja Hari Singh and majority population was Muslim. Hari Singh wanted to remain independent. At this point Pakistan army-instigated tribal attack was orchestrated in Kashmir.
    Faced with the attack, Hari Singh approached India for military help to quell the Pakistani aggression. As Kashmir was independent at that time, it was not possible for India to send the army and so the compromise was struck. In this, a major role was played by Sheikh Abdullah, who was Chief of National Conference, who identified more with the secular, democratic values of Gandhi and Nehru. To facilitate Indian army to help fight Pakistani aggression, the treaty of Accession was negotiated.

    As per treaty between India and Jammu & Kashmir:

    • This treaty involved accession, not merger of Kashmir into India.
    • Kashmir will be part of India with autonomous status.
    • Autonomy meant that Kashmir Assembly will have all the power except in matters of defence, communication and external affairs,
    • These three matters will be looked after by Central Government
    • Kashmir will have its own Constitution, its own flag, its own Prime Minister and Sadar-E-Riyasat.

    Under these conditions, Kashmir acceded to India. India sent its army and could save two-third of Kashmir from Pakistani Aggression. As further war involved loss of civilian lives, cease fire was declared and the matter was taken to United Nations. United Nations resolution on the matter asked for vacation of aggression by Pakistan, reduction of army by India and to conduct the referendum, plebiscite. Pakistan backed by America, refused to vacate the aggression, violated the United Nations resolution and the matters came to a standstill as no plebiscite could take place. The term Line of Actual Control came in to being denoting the line across which two countries, India and Pakistan, had their control. It is this treaty of accession which was the basis of Article 370.
    By the way similar provisions do prevail in much other hill state like Himachal Pradesh and Nagaland. These provisions were given to the hill states, to Adivasis areas to protect these from the influx of wealthy industrialists and others swamping these areas, to preserve their character. There are states where land cannot be bought by outsiders, there land is being leased and industries set up.
    • Will industrialists venture to invest in areas where militancy is uncontrolled and on the rise?
    • Last five years also saw a massive rise in unemployment all over India.

    The policies pursued by ruling government are leading to an increase in unemployment. Whether these can open the doors of industrialization and employment in Kashmir is a question which time alone can tell us. The core point to consider is that development can be brought into valley by undoing the hindrance factors.
    Meanwhile the communal forces, which totally kept aloof from the freedom movement of India and had no role in the process of the making of India as a nation, started clamouring for full integration of Kashmir into India. Their pressure was for doing away with the treaty of accession. Sheikh Abdullah, the lion of Kashmir, had great faith in India’s secularism. The murder of Gandhiji and pressure from Hindu nationalists to fully merge Kashmir into India shook him to the core. Disturbed by all these, Abdullah started talking to United States, China and Pakistan. This was treated as treason by Government of India and he was imprisoned on these charges.
    Later with support from Pakistan, and infiltration into Kashmir of Al Qaeda type elements, it took an ugly communal shape. All this was countered from Indian side by increasing the presence of military. Normal civilian life in the valley was replaced by life under gun-point. It witnessed massive civilian casualties, the unique phenomenon of half widows, where the man is missing for years, derailing normal life and increasing the alienation much further. Plight of people of Kashmir can be gauged from these facts.

    Kashmiri Pundits

    As far as the painful issue of exodus of Kashmiri pundits is concerned, let’s recall that it took place during President’s rule with Jagmohan as the Governor of the state. At that time the communalized militants were targeting the Pundits. There was a goodwill mission which was requesting the pundit community to hold on and calling upon the state to bring in the measures for the security of the citizens, more so of Pundits in the state.
    The question arises why Kashmiri pundits could not be rehabilitated. The answer lies in the fact that in the situation where violence is the dominating atmosphere and militancy is not abetting, the pundits can’t go back to their homes. The roots of militancy lie in alienation, and that’s not being addressed at all. We need to think a bit more deeply as to how amiable situations are created when Pundits can go and live in their original homes and areas. The dissatisfaction of the people has been manifesting in the form of stone throwing incidents which went up during this time. To attribute it to mere funding by Pakistan, will be short-sighted. No doubt Pakistan has played a negative role, but the major factor is the dissatisfaction among the people of Kashmir.

    Path for Peace

    Atal Bihari Vajpayee had formulated:
    • Insaniyat (Humanism),
    • Kashmiriyat and
    • Jamhooriyat (democracy).

    We are witnessing the policies which are just hyper-nationalist, which are undermining the local people’s sentiments and aspirations for a democratic set up. At present there is a great sense of insecurity in the people of Kashmir. We need to keep the people at the centre of our policy making. The reactions of Pakistan and China to this are not very friendly. We can live in peace only with good relations with our neighbours, we can create harmonious atmosphere by respecting the sentiments and aspirations of people of the state. The reduction of the status of J&K to a mere Union territory is a matter of concern.

    The process of integration is attained only through:

    • mutual dialogue,
    • accommodation and
    • strengthening of democratic processes.

    While we look forward to the legal opinion on the issue, we need to assuage the anguish of the people of Kashmir. The litmus test of any decision lies in the reaction of those whom it primarily affects. We look forward to the times when rectification measures are undertaken whereby people of Kashmir, Kashmiri Pundits all can celebrate with joy, and Kashmiriyat – the soul of Kashmir – is revived.
    There are strong arguments against and supporting abrogation of Article 370. While one section argues that Article 370 is the only constitutional link between the state and the rest of India, other feel that it has been 70 year old stumbling block which continues to prevent from becoming an integral part of India. But the truth is that ever since the creation of India and article 370, the kashmiri people are sufferers of the issue.

Posted by : IAS Target