Article 370 abrogated

  • Category
    Polity & Governance
  • Published
    20th Aug, 2019

Issue

Context

The government removed the special status for Jammu and Kashmir in India’s Constitution. Special status was withdrawn by abrogating Article 370.

BACKGROUND

Article 370 grant special autonomous status to Jammu & Kashmir and exempts it from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution.

It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory. The IoA came into play when the Indian Independence Act, 1947 divided British India into Independent India and Pakistan.

Indian Parliament needs Jammu & Kashmir government’s nod for applying laws in the state — except defence, foreign affairs and communications.

Analysis

Was Article 370 a temporary provision?

  • It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’.
  • Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite.
  • In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it was considered to be a permanent provision.
  • The Supreme Court in April 2018 said that despite the headnote using the word “temporary’, Article 370 is not temporary.

Issues due to Article 370

  • Affects unity and integrity: It wreaks havoc on the unity and integrity of the country as it creates boundaries for the people of J&K by providing them with separate constitution and rights. It builds emotional and psychological barriers between the people of Kashmir and the rest of India, thus fostering a psychology of separatism.
  • Rising militancy and separatism: The separatist lobby in the state has used this barrier to build a mindset of alienation among the people. The poor and the down-trodden people of the state were exploited by the separatist leaders to keep this special status alive. It has led to rising militancy in the region. Most of youth take to stone pelting, remain unemployed and are devoid of welfare development.
  • Violation of Right to Equality: No outsider can settle in the state, own any property and cannot vote in the state. Article 35 A had been used to define permanent residents. This violates the fundamental right to equality for Indian citizens and creates barriers for investment and thus development.
  • Corrupt and radical administration: The state administration had been completely subverted from within by the separatist leaders who had infiltrated into the system over a period of time. This has led to government resources being used to further promote the propaganda of separatists.
  • Affects International image: Existence of this statute is used by Pakistan and its proxies in the valley to mock at the very concept of ‘India being one from Kashmir to Kanyakumari. This affects India’s image on the international platform.

Government’s procedure in changing Kashmir's special status overnight

  • The President issued a presidential order under Article 370 (1) of the Since, it can be issued only with the Jammu and Kashmir government’s concurrence; the notification uses the words “with the concurrence of the Government of the State of Jammu and Kashmir”. This presumably means the Governor, who is now administering the State under President’s Rule, has given his concurrence on behalf of the State government.
  • This Order supersedes the 1954 Order and declares that all the provisions of the Constitution of India, shall apply to Jammu and Kashmir too.
  • However, some special measures were still needed for the scrapping of Article 370 altogether. Therefore, a few clauses were added to Article 367 of the Constitution.
    1. Article 367 contains “Interpretations”. The new clauses say that all references to the State government shall mean “the Governor”.
    2. The reference to the “Constituent Assembly” in a proviso to Article 370 (3) has been amended to read “Legislative Assembly of the State”. This is the proviso that says the President can declare that Article 370 is no more operative only on the recommendation of the Constituent Assembly. As there is no Constituent Assembly in existence now, there is no body to “recommend” the demise of Article 370. Therefore, the State Assembly has to play that role.
    3. The issuance of the Presidential Order has set the stage for the abrogation of Article 370. Here, the government has made use of the fact that Jammu and Kashmir is under President’s Rule. Under the Proclamation issued under Article 356 of the Constitution, by which the President takes over the administration of a State, Parliament usually performs the legislative functions of the State Assembly.
  • The Union Home Minister introduced two statutory resolutions:
    1. To recommend that the President issue a notification rendering Article 370 inoperative.
    2. To accept the Jammu and Kashmir Reorganisation Bill. The Bill envisages converting Jammu and Kashmir into a Union Territory with a legislature, and carves out Ladakh region as another Union Territory, but without a legislature.

Concerns regarding the process adopted to abrogate article 370

  • The first concern is due process. The assembly does not exist at the moment either, and the notification suggests that it was the Governor’s concurrence that was obtained to render the provisions irrelevant. This is clearly not sufficient.
  • The process has been pushed through without consultations with Kashmir’s political leaders, who have been under detention.
  • The reorganisation of states requires the consent of the state assembly concerned. In this case, J&K has been bifurcated, and statehood diluted to UT status, without any deliberations in the assembly.
  • Like all Indian citizens, Kashmiris seek greater democracy. Elements keen to destabilise India would seek to build a narrative that Delhi is taking away powers from the local level.
  • It is important that the process of turning the state into a UT does not lead to alienation.

Development by abrogating article 370

  • It would head towards ending separatism, nepotism and corruption and would provide welfare to the people of Jammu and Kashmir.
  • Women will enjoy greater rights as all the laws made at the centre will be implemented without any hindrance.
  • SC, ST and individuals from other backward communities in other regions would enjoy special benefits as the central laws for welfare of these communities.
  • The financial benefits for central government employees, including security forces, like LTC, HRA and more will be provide to those posted in Jammu and Kashmir.
  • The vacant posts in Jammu and Kashmir will be filled. This will benefit the youth of Jammu and Kashmir. Local youth will receive employment.
  • State companies as well as private companies will be encouraged to create jobs for the local youths in the state.
  • J&K and Ladakh have the potential to become the biggest tourist destination in the world.
  • Film industry would come to J&K for shooting their projects. Sport training, scientific education will help the youth of J&K to showcase their talent across the world.
  • Several herbal and organic products are spread across J&K and Ladakh. If they are identified and marketed in the global market, then it will greatly benefit the people and farmers of these regions.

Challenges

  • It may swell the ranks of separatists.
  • It may feed the rage and increase the distance between Srinagar and New Delhi.
  • It may even push mainstream politicians to promote extremists views.
  • It could lead to more bloodshed and encourage Pakistan to fish in muddied waters.

Way forward

  • The government should launch a comprehensive outreach programme to all Kashmiris.
  • It must remain on guard to ensure Pakistan, and radical militants, do not take advantage of the situation.
  • It should simultaneously engage in dialogue with Kashmiri political actors, civil society, media, citizens and allay their apprehensions.
  • The Centre must show to Kashmiris that its intent of removing the special status is to create more opportunities, and prosperity.

Learning Aid

Practice Question:

Examine how far the ‘integrationist approach’ by abrogating article 370 will be successful in addressing the increasing alienation in the Kashmir Valley and promote inclusive development.

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