Abrogation of Article 370 Download PDF

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

  • President Ram Nath Kovind issued a presidential order under Article 370 (1) of the This clause enables the President to specify the matters which are applicable to Jammu and Kashmir. As 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.
  • The Order supersedes the 1954 Order. This effectively means that all the provisions that formed the basis of a separate “Constitution” for Jammu and Kashmir stand abrogated. The Order 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. It will enable the President to declare that Article 370 has ceased to operate.
  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 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 tothe 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 scattered 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.
  • 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.

Impact on LoC status

  • As with any bilateral treaty, the status or definition of the LoC can be legally altered only with the agreement of both India and Pakistan.
  • The constitutional changes to Article 370 do not automatically make an impact on the status of the LoC.
  • On a question over the impact of this constitutional change on the Pakistani side territory, the Indian home minister reiterated India’s claim to the whole of Kashmir.
  • However, a diplomatic response from the Ministry of External Affairs clarified that the changes do not affect either the LoC or the Line of Actual Control (the disputed border with China running through Ladakh).
  • Given these, many see the LoC as merely continuing with an indefinite and harmful status quo, thus preventing a substantive resolution of the conflict.

Legal contentions

  • A domestic law of one country simply cannot amend a bilateral treaty without the consent of the other party.
  • g. Previous amendments and additions to Article 370, too, have not changed the LoC.
  • Also, in 2018, Pakistan introduced the Gilgit Baltistan Order 2018 to begin the integration of Gilgit Baltistan into the federal structure of Pakistan.
  • It was a step towards making it the country’s fifth province, akin to Punjab or Sindh.
  • While India and Kashmiris on both sides of the LoC opposed the move, there was no suggestion that the LoC should be sacrificed.
  • Given these, the unilateral constitutional changes, as with scrapping Art 370, fundamentally violate the letter and spirit of the Simla Agreement.
  • Notably, Article 4 (2) of the Simla Agreement states as below:
  • Neither side shall seek to alter it (the LoC) unilaterally, irrespective of mutual differences and legal interpretations
  • Both sides further undertake to refrain from the threat of the use of force in violation of this Line
  • This would clearly justify internationalising the conflict over Art 370, violating the ceasefire and in the extreme, direct military action.
  • Indeed, Pakistan briefly threatened to reconsider its adherence to bilateral treaties, including the Simla Agreement, in response to India’s latest move.

LADAKH AS A UT

Ladakh has been made a Union Territory along with the abrogation of Article 370 of the Constitution of India

About

  • Ladakh is a mountaneous region which is sandwiched between Karakoram Range in North and Himalyan Range in the South.
  • It is composed of two districts:
    • Leh – It is the 2nd largest district of India and it covers more than half of the area of Jammu and Kashmir.
    • Kargil – It lies near Line of Control. Zanskar Range is a part of Kargil.


Negative Implications

  • Due to the expected change in demography and commercialisation of the region. Its unique ecological and cultural value may get affected
  • Since the region is prone to international disturbances from China and Pakistan, a large portion of pasture land will be occupied by military personnel. This will affect the farmer community
  • There is no evidence that coming under direct control of the central government would certainly lead to greater development of the region. For instance, the level of development in Andaman and Nicobar is not very impressive.
  • The autonomy of Ladakh’s Autonomous Hill Development Council which was already on a decline will further reduce.

Positive Impact

  • Currently, there is no medical college, engineering college or a management institution anywhere in Ladakh. Now, new start-ups, businesses and the government will create new infrastructure and boost development along with the creation of new jobs.
  • The people of Ladakh will be brought to the mainstream Indian society.
  • The increased tourism will bring significant revenue, which could be used to create additional social infrastructure.

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