When the newly appointed Home Minister of India, Amit Shah of the freshly elected BJP government presented the bill in the Parliament on August 5, 2019 to abrogate the clauses in the controversial Article 370 and 35A that granted the State of Jammu & Kashmir a special status and proposed to reorganize Laddakh and Jammu & Kashmir as two separate union territories, instead of full-fledged single state, lot of hue and cry with mixed and confused opinions from political parties captured the news headlines.
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In view of the Home Minister, he was correcting the mistake that was committed 70 years ago by the then Government functionaries and the abolition of Article 370 and reorganization of the State will now open doors for development of all the three regions Jammu, Kashmir and Laddakh.
The abrogation of article 370 and 35A was passed by two third majority in the Lok Sabha and has also got the President’s nod. The decision is largely welcomed by Indian masses and most of the political parties. Some of the leaders in main opposition party in Parliament - Congress have also supported this decision and did not tow the party line. The congress party’s whip in Rajya Sabha (Upper house of Parliament) Bhubaneswar Kalita, Member of Parliament from Assam, has also resigned from the party accusing the Congress for not supporting the abrogation. Mr Kalita claimed that the Congress party was committing suicide by opposing the abrogation of Article 370. Many are surprised with the speed and hurry in which the bill was passed by both houses of the Parliament.
Historical Back Ground: Article 370 & Kashmir
At the time of partition of India in 1947 into two separate countries - India and Pakistan, the State of Jammu & Kashmir like other princely states of India, was under the rule of Dogra King Maharaja Hari Singh. The King faced an uprising and attack by his muslim subjects who connived with Pakistan's Pashtun tribal Kabailis. The Pakistan’s Pashtun militia crossed the border of the state in October 1947. Maharaja, who earlier did not want to merge Kashmir with India, made a plea to India for assistance when he witnessed the threat from the kabailis. The request was accepted by Government of India but the help was offered subject to his signing an Instrument of Accession to India.
In 1948, Pakistani armies also entered the war supporting these kabailis and before they were driven away by Indian Army, they forcibly captured some parts of Kashmir which had already become the integral part of India. These parts were never returned by Pakistan and after ceasefire in the midnight of December 31, 1948, a Line of Control was drawn between the two countries. Since 1948, India has been claiming back the Pakistan occupied Kashmir which is considered as the integral part of Republic of India.
Later, many organizations in Kashmir, including the king himself wanted that the constitution of India should be fully implemented to the State of Jammu & Kashmir but Shaikh Abdullah who advocated abolition of monarchy wanted a separate constitution for the state. A constituent Assembly was formed in 1951 to look into the matter and the Article 370, granting special status to Jammu & Kashmir was inserted in the Constitution of India. The Constituent Assembly of Jammu and Kashmir which was an elected body unanimously resolved on 15 Feb 1954 that the entire princely state of Jammu and Kashmir is an integral part of India.
The matter was taken to United Nations which resolved that a plebiscite be conducted both in PoK and Jammu & Kashmir. For this Pakistan had to withdraw its army from it occupied Kashmir. India agreed to plebiscite in Kashmir under the UN resolution adopted in 1948, but Pakistan subverted the UN resolution by transferring some of POK parts to China in 1965 and bifurcating the POK into two parts in 1970. This has resulted in demographic and legal changes in the PoK nullifying the UN Resolution.
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What is Article 370?
Inserted in 1954: Four years after the Constitution of India was implemented in 1950, the Article 370 of the Indian constitution came into being in 1954 through a special order issued by the President of India.
Granted Special Status: Article 370 granted special status to the State of Jammu & Kashmir and had allowed it to have a separate constitution, dual citizenship, a state flag and autonomy over the internal administration of the state.
Temporary in Nature: The article was drafted in Part XXI of the Constitution as Temporary, Transitional and had Special Provisions. The Constituent Assembly of Jammu & Kashmir which was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether, was consulted before issuance of Presidential order in 1954. Article 370 was a temporary provision as its applicability was intended to last till the formulation and adoption of the State's constitution.
Dissolution of J&K Constituent Assembly: Since the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370, the Article stayed within the constitution of India. As such Union of India was empowered to abrogate, amend the provisions in Article 370 as there was no more a Constituent Assembly to which any reference could be made.
Separate Set of Laws: Despite being a State of Union of India, the Article 370 & 35A on Kashmir defined that the Jammu and Kashmir state's residents would live under a separate set of laws, including those related to Citizenship, ownership of property, and fundamental rights as compared to residents of other Indian states. Both these Articles prohibited Indian citizens from other states from buying any land or property in Jammu and Kashmir
Process to Abrogate/Amend Article 370: According to shri Gulzari Lal Nanda, Home Minister of India during 1963-66, the terms for the "special status" granted to Jammu and Kashmir in this Article had a "very simple" process of amendment. It could be amended by an Executive Order of the President of India, whereas the powers of all other states could only be amended by the normal process of (constitutional) amendment which had stringent conditions.
In addition to the original orders issued by the President of India from 1951 to 1954, forty-seven Presidential orders were issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu and Kashmir.
Article 370: Adverse Impacts on Kashmir
Despite being “Temporary and Transitional" the Article 370 made the State of Jammu & Kashmir a closed door economy which helped the politicians and separatist forces in Kashmir to become strong. While it is useless to talk about the inclusion of Article 370 in the constitution, it is worthwhile to note how it affected adversely the overall development of the State of Jammu & Kashmir. Article 370 is an exception to the fundamental rights guaranteed to all citizens by the Indian Constitution.
- Parallel Constitution without safeguard to Minorities: Article 370 allowed parallel state constitution in the State of Jammu & Kashmir. It had no word minorities anywhere in it. Unlike in the Constitution of India, the rights of minority communities in Kashmir were not protected. Till August 5, 2019 when the Article 370 was abrogated, J&K was also the only Indian state with no tribal rights. The male Kashmiri Muslims enjoyed far greater rights than any other Indian citizen. Taking cover in the shadow of Article 370, the forced exodus of a minority community—Hindu Pandits from Kashmir in 1990 had happened. Their houses were burned and looted, women were raped, many of them were killed but the Government in Kashmir remained silent.
- No Right to Education: All the States are governed with the doctrines of Directive Principles of State Policy granting right of education to each and every citizen. But in Kashmir it did not apply and the state had no right to education for its citizens
- No Land or Property for Indians: Article 35A, which was abolished along with abrogation of Article 370, did not allow any person from any other State of India to buy land or property in Kashmir. This was a major drawback as no developmental work could take place and no substantial employment generation could be seen.
- Deprived Women of their Rights: Article 35A stipulated that J&K women who married non-Permanent Residents of Kashmir would lose their Permanent Resident status and inheritance rights in Kashmir. So if a girl gets highly educated and becomes a scientist, doctor, engineer, film maker, actress and marries any Indian who is not a permanent resident of Kashmir she would lose all her rights and Kashmiri citizenship. Even if the person who marries the girl and wants to settle down in Kashmir, the family loses their rights. On the other hand if she marries a Pakistani, all her rights are intact.
- No Reservation for Dalits: Article 35A did not allow the thousands of Dalits who were brought in from Punjab as government sweepers in 1957 to get any government jobs other than sweepers. They could not get a Scheduled Caste certificate from the state government and therefore were not eligible for any benefits under central government schemes.
- Breeding Racial Discrimination: While Hindu and Sikh refugees from West Pakistan have been a non-Permanent Resident second-class citizens, the Uighur Muslims from Xinjiang were granted Permanent Resident status. The abolition of Article 35A has granted full citizen equal rights not only to the Kashmiri muslims but also to Hindu, Sikhs, Budhists, Dalits, and minorities granting them fundamental rights as described in the Constitution of India.
- Feeding Power Elites: In a letter dated April 20, 1990, written to Mr Rajiv Gandhi, former Prime Minister of India, by Mr. Jagmohan, twice Governor of Jammu and Kashmir, he writes “Article 370 is nothing but a breeding ground for the parasites at the heart of the paradise. It skins the poor. It deceives them with its mirage. It lines the pockets of the “power elites.” It fans the ego of the new sultans. In essence, it creates a land without justice, a land full of crudities and contradictions. It props up politics of deception, duplicity and demagogy.”
- Frequent Misuse: Mr Jagmohan further writes in his letter, “The fundamental aspect which has been lost sight of in the controversy for deletion or retention of Article 370 is its misuse. Over the years, it has become an instrument of exploitation in the hands of the ruling political elites and other vested interests in bureaucracy, business, judiciary and bar. Apart from the politicians, the richer classes have found it convenient to amass wealth and not allow healthy financial legislation to come to the State.”
- Tax Thefts under Cover of Article 370: At the cost of tax payers from other states, thousands of crores of Rupees were granted for the development of Kashmir, but the end use was deceiving. According to Mr Jagmohan,“The provisions of the Wealth Tax, the Urban Land Ceiling Act, the Gift Tax etc, and other beneficial laws of the Union have not been allowed to be operated in the State under the cover of Article 370. The common people are prevented from realising that Article 370 is actually keeping them impoverished and denying them justice and also their due share in economic advancement.”
- Breeding Two Nation Theory: Article 370 suffocated the very idea of India and fogs the very vision of a great social and cultural crucible from Kashmir to Kanyakumari. A bye product of Article 370 is the separate Constitution of Jammu and Kashmir. It must go as it facilitates the growth and continuation of corrupt oligarchies and puts false notions in the minds of the youth. It has given rise to regional tensions and conflicts and even the autonomy assumed to be available is not attainable in practice.
Repealing of Article 370
After waiting for 71 years and infusing lot of funds for the development of Kasmir at the cost of tax payers of other states of India, Government of India remained perturbed over the draining of its assistance, No proper and visible development work seen in the state, no jump in employment of youth while sharp increase in terrorist activities in connivance with many political leaders and separatist groups operating in the State of jammu & Kashmir took the toll of thousands of lives. Laddakh region has suffered most of the negligence of the State Government.
As a result and fed up with the working style of the State Government, political leaders supporting separatists and terrorists, the government of India revoked the special status of the State of Jammu & Kashmir on August 5, 2019 through a Presidential Order and the passage of a resolution in Parliament.
On 5 August 2019, Honourable President of india Ram Nath Kovind issued a constitutional order superseding the 1954 order. The order made all the provisions of the Indian constitution applicable to Jammu & Kashmir. Both houses of Parliament have also passed the resolutions. A further order from the President was issued on 6 August declaring all the clauses of Article 370 except clause 1 to be inoperative.
Besides, the Jammu and Kashmir Reorganization Act was passed by the parliament, enacting the division the state of Jammu and Kashmir into two union territories namely Union Territory of Jammu and Kashmir and Union Territory of Laddakh. The reorganisation will become effective from October 31, 2019.
The abrogation of Article 370 states, ‘All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.’
Article 370 Abrogation: Positive Impact on Growth & Stability
- Equality Before Law: The minority communities in reorganized union territories of Jammu & Kashmir and Laddakh will have equal rights as that of majority Muslim community as the Constitution of India will be applicable without any obstacle.
- Fast Pace of Development: Apart from streamlining the Union Government Funds assigned for development the pace of development in Kashmir and Laddakh may go up with PPP model and private investments
- Curb on Terrorism: Many political leaders and separatist groups used to operate under the cover of Article 370 and supported the terrorist activities directly and indirectly. The security personnel provided to these separatists were killed at the behest of these separatists. Now with no hidden law, the direction action against the terrorist groups can be taken with an aim to bring the misguided youth to main stream.
- Education as a Right to All: Government of India can establish higher educational institutions in the Kashmir valley to provide greater learning opportunities
- Kashmiri Women to gain Most: So far Kashmiri women were deprived of their fundamental rights of property. The abrogation of Article 370 will ensure that do not lose their rights on land and property even if they get married to any Indian in any State
- No Fear of Triple Talaq: With the abrogation of Article 370 and 35A, the law of the land will apply. It will give right to muslim women against triple talaq as is available in other states.
- Resettlement of Hindu Minority: The abrogation of Article 370 will help in resettling the uprooted Kashmiri Pandits back home. Most of them wish to go back to Kashmir to their homes. Government has assured them security.
The Negative Impact
- The abrogation of Article 370 has not gone down well especially to elite Kashmiri political leaders, separatists and terrorist groups. They are hell bent to flare up tensions in the valley. This has caused security concern for common people.
- The reorganization of state of Kashmir into two union territories of Jammu & Kashmir and Laddakh is although welcomed by Laddakh as it did not get fruits of development during past 70 years, Kashmir has lost its full state hood. However, the Government would restore it once the things get better in Kashmir.
- Since J&K has become a Union territory, the central government must now ensure that funds are deployed properly and don’t get into the pockets of a few families and their cronies.
- It will take time before industry finds Kashmir a safe place to invest
- Pakistan will also try to shoot up its terrorist game. When the US withdraws its troops from Afghanistan, Taliban’s terrorists will be available to Pakistan to be re-directed towards Kashmir.
- The doubting Kashmiri Muslim must be made to realize that Article 370 brought more negativity in his life. It was because of this article that he was kept alienated from his nation for seven decades.