ARTICLE 370 – New Era of Kashmir
“India is an indestructible union of destructible states.”
-Dr. Babasaheb Ambedkar
The federation is a union, because it is indestructible. Though the country and people may be divided into different state for convenience of administration, the country is one integrated whole, its people a single imperium derived from single source. Kashmir is rich in beauty and can prove to be major source of tourist attraction & thus revenue but no investors want to come because they denied privileges in Jammu & Kashmir which is result of article 370. Consequently, especially among youth, is on the rise, leading indirectly aiding militancy. The matter of special status to Jammu & Kashmir through article 70 has flared constant debates. But there are special provisions given to some other states like Nagaland, Maharashtra & Assam through article 371. Internationally Hong Kong is an integral part of the China but has been given special dispensations. There are in fact numerous examples around the world in which due to special circumstances, certain areas or regions have been given a special dispensations.
The origin of article 370 can be traced back to British Raj in India. Prior to the partition of 1947, India was divided in two different sets of geographical regions. Provinces which constituted 60% of the land area of the sub-continent known as British India & princely states which constituted the rest 40% of British India. Starting with 26th October 1947 during the rule of Maharaja Hari Singh during the time of independence, was under attack from Muslim tribes, signed an instrument of accession granting only foreign affairs, defense & communities related aspects to the Government of India. Therefore, the instrument of accession was signed between Government of India and Raja Hari Singh from that day onwards Jammu & Kashmir became part of India. On 17th October 1949, article 370 was incorporated in the Constitution of India and was made applicable from 26th January 1950 on republic day. The two important article related to Jammu & Kashmir were
- First ‘article 1’ which declares Jammu & Kashmir as state of India.
- Second ‘article 370’ which states about temporary status of Jammu & Kashmir.
In 1954, changes were made in 370 & 35A through specific presidential orders. Thus, similar kinds of presidential order was passed by Dr. Rajendra Prasad on May 14th 1954 which was named as “The Constitution Application to Jammu & Kashmir Order 1954.” Because of this presidential order in 1954 article 35A was included under constitution of India. This article basically prohibits other Indian citizens & tells that who can be a permanent resident in Jammu & Kashmir.
Generally, if we have a look towards Constitution of India we will not be able to find the specific article 35A, at the same time when look towards constitution of J&K we will definitely get 35A there. The constitution of J&K started to be applicable from 17th November, 1956 which declares that it is integral part if India. Later on, many changes were made in J&K during the period of 1947 to 1990. In 1990, a special ‘Armed Forces Special Powers Act’ was imposed in J&K. Later in 2015 when BJP, along with Peoples Democratic Party formulated a government together but then in 2018 BJP break their alliance with PDP. But then as per the constitution of J&K article 92 says that if states constitution machinery is not running properly, then government rules takes over from there. So, from June 2018 governance rule came into force in J&K. At the same time in December 2018, president rule was imposed in J&K.
Later on in 2019, BJP wins the parliamentary election and in election manifesto they clearly mentioned about the scrapping of article 35A & 370.
ARTICLE 370 AND 35A DEALS WITH-
Article 370 came into force because in 1947 we have signed an instrument of accession & said that will make a special provision for J&K. Therefore, in order to fulfil that statement, we included article 370 under constitution, from the date of enforcement of constitution of India.
WHAT ARTICLE 370 DOES?
It basically provides a special status to J&K and makes clear that the other laws of India will not be applicable to J&K and special laws will be made for J&K. It has clearly provided that it is a temporary provision. Article 370, also states about its removal, procedure whenever president want, he can issue a public order or a public notification & can say that from today onwards article 370 is not applicable. But before issuing this order he has to take permission from the constituent assembly of J&K.
THE QUESTION ARISES WHY THE ARTICLE 370 WAS NOT REMOVED?
Because the constituent assembly which was discussed for the permission, that assembly was already dissolved since 1957.Therefore, though the constituent assembly was not in existence, so because of this dead lock the whole problem was arising in removing of article 370.
Article 35A- In order to fulfil the special provision provided under article 370 of special status Dr. Rajendra Prasad issued a presidential order & from there onwards article 35A into existence. At the same time because of which other states were separated from J&K by article 370 like that only 35A created a discrimination among the people living in J&K.
Firstly, 35A says that all that laws which other states of our country follows will not be applicable in J&K, president along with state assembly will decide laws that will be applicable in J&K. Secondly, 35A is that provision decides that who will be the permanent resident of that state & who are no.
TERMS OF PERMANENT RESIDENT
The people who are considered as permanent resident of J&K have special rights & given many privileges and those who are not permanent resident have to face many limitation over that area.. Therefore article.35A of constitution of J&K provides tht the people who are state subject of that state from 14th May 1954 or the people who are living there since 10 years or more or the people who had lawfully acquired an immovable property there, only those people will be considered as permanent resident of J&K otherwise will not.
What’s the matter if anyone is permanent resident or not?
For example, right to vote has been available for the non-permanent residents over there & many more objections were arising under article 35A.
- It was very discriminating for women, which states that if any Kashmiri women marries an outsider or a non- Kashmiri then she will not be able to access his property rights any more. But in 2002, as per statement given by Supreme Court it state that, the property rights of Kashmiri women will be as it but her offspring will not be able to enjoy rights over that property.
- It acted as a speed breaker for development jobs over there, highly educated or any land facilities were for the people who are permanent resident over there. Non-permanent resident & other people from other states cannot avail those facilities. Concluding, all these and looking after all these provision why would any professional prefer to go there, when they know that they have to face many limitations & problems.
- Further, the people who were in minority & Dalit have to face a lot of discrimination, because of this provision. Therefore, many hurdles were arising because of these provision for integration of J&K and other states of India.
SOLUTION OF THIS ISSUE BY PARLIAMENT
In 1954 as Dr. Rajendra Prasad had issued presidential order which was called as ‘The constitution (application to J&K) order 1954.’ This gave rise to article 35A & constitution of J&K into existence. On 5th August 2019, president Ram Nath Kovind used his power on the clause 1 of article 370, issued another presidential order on this, and named that presidential order as “The Constitutional (Application to J&K) Order 2019.”
The presidential order of 2019 will overwrite or replace the order of 1954 with the immediate effect, so the presidential order of 2019 replaced the order of 1954. The moment since it replaced the order of 1954 the existence of that order of 1954 the existence of that order came to an end & along with that article 35A & the constitution of J&K was limited, it sized to exist.
The presidential order of 2019 was released soon, after that home minister Amit Shah proposed two resolutions-
- He said that because of article 370 discrimination issue is going all around, that’s why we should bring such changes is article 370 that it would get inoperative, article 370 shall not be able to applicable.
- He proposed J&K reorganization bill, while proposing these resolution the home minister said that because of article 370 democracy is not coming to full existence is J&K and states development in withheld.
WHAT HAPPENED WITH THOSE TWO RESOLUTIONS?
The first resolution of article 370, as we were not able to remove article 370 because it was written that if you have to remove this permission from constituent assembly has to be taken. But the constituent assembly was not in existence as it was already dissolved in earlier, so it was dead lock for them. But the presidential order of 2019 finished that deadlock. The new presidential order added clause (4) in article 367.
WHAT IS ARTILCE 367?
It is the interpretation clause of the article 370, article 367 says that the word constituent assembly used in article 370 from now onwards it will be known as legislative assembly, so the dead lock of constituent assembly was finished.
Jammu & Kashmir resolution bills section 3 says that, a new territory will be made which will comprise the region of Ladakh (Kargil + Leh).
Whereas section 4 of this says that a new union territory named Jammu & Kashmir will be made and also mentioned that Ladakh’s territory will be without legislature body & Kashmir will be with legislature.
RESULTS AFTER THE REMOVAL OF 35A & CHANGES IN ARTICLE 370-
- In place of dual citizenship there will be single citizenship now, special status & powers are removed.
- No separate flag will be there, only tri- color flag will be hoisted.
- Instead of separate constitution, Constitution of India will be applicable since now.
- Women facing prohibition of property will now be able to transfer their property to their children.
- Discrimination against minorities & other classes over there has also been removed.
Therefore, on 5th August 2019, the Government of India revoked the special status, or limited autonomy, granted under article 370 of the Indian constitution to Jammu & Kashmir which has been the subject of dispute among India, Pakistan, and China since 1947.
The historic action by the Indian government is a real brave one. Article 370 was only a temporary, transitional provision. It was supposed to be in operation only till Jammu and Kashmir frames its own constituted for considerably longer period of time. This extension was made to establish India’s interest in the region of Jammu and Kashmir. Some people consider it scrapping it of article 370 and called it as abrogation, according to my opinion the good or the bad lies in the hands of the implementing authority. Jammu and Kashmir being a part of country, it’s duty of authority to look after the welfare of the people at the same time no authority has right to violates their fundamental rights which are essentials living being.
Author: Nishchal Kukade,
Dr. Babsaheb Ambedkar College of Law, Nagpur Final Year Student