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Amendment Of Article 370 And Its Ramifications

Kashmir, its origins and geographical as well as political demarcations are one the most debated and controversial topics of today's times. Once the cradle of civilisation, is currently amidst rubble, ruin and despair. Until the mid-1800s it Kashmir denoted only the Kashmir valley, located between the greater Himalayas and the Pir Panjal range. However for the provisions of this blog and under the current geopolitical context, it includes India occupied Jammu and Kashmir, parts of Azad Kashmir and Gilgit-Baltistan, and the Chinese occupied provinces of Aksai Chin and the Trans-Karakoram Tract.

This highly contested location is essentially an interplay of China, India, Pakistan and insurgency militant groups each with varied interests and political affiliations. To understand the eminence of the amendment of Article 370 and the subsequent rendering of Article 35(A) regarding citizenship as null and void by the intervention of the Presidential powers, one must take a deep dive in the convoluted history of Kashmir.

History:
The dense and intricate games of power play of the region of Kashmir begin from the annexation of Kashmir by the Sikh empire in 1820, under Ranjit Singh. After the subsequent defeat of the Sikh empire in the first Anglo Sikh war of 1846, resulted in the purchase of Kashmir from the British empire under The Treaty of Amritsar. This led to the Gulab Singh ascending the throne as the Raja of Jammu. The power was now vested in the hands of a Dogra and Kashmir was considered a princely state. The reign of Dogra's lasted from 1846-1947. The independence movement, rise of insurgency and the newly formed free India only furthered the religious and political affairs in Kashmir, under the rule of Raja Hari Singh. Kashmir now had a decision to make between:
  1. Becoming an independent and autonomous state
  2. Accede to either India or Pakistan, as was mentioned under the partition plan of the Indian Independence Act.
Initially Raja Hari Singh wanted an independent state, however due to the violation of a standstill by Pakistan through its relentless efforts to invade, he sought military aid. Jawahar lal Nehru sent troops against Pakistani armed forces and tribe's men, on the condition of accession with India.

The instrument of accession was signed in 1947 with a promise of military aid and autonomy granted to the state of Kashmir. This unsurprisingly infuriated Pakistan, went to the extent of calling Article 370 fraudulent and lacking of consensus.
Due to this dispute India later approached the UNSC, which suggested:

  1. Formation of UNCIP (United nations commission for India and Pakistan).
  2. Withdrawal of all Pakistani militant troops from invaded locations with immediate effect.
  3. Maintenance of minimal Indian military for restoration of peace and security.
Article 370 was enforced as a "transitional and temporary" (Part XXI of the constitution) means of providing privileges that ensure the socio economic autonomy of Kashmir. This was essentially an interim facility until the constitution of Kashmir could be formed (Adopted in 1956 and enforced by 1957). The Article was adopted on 17th October 1949, which exempted the state from the Indian constitution except for Article 1 and Article 370.

Few of the special powers granted under Article 370 are as follows:

  1. Drafting of own constitution by its constituent assembly.
  2. Presidential rule as well as financial emergency cannot be enforced under Article 360, except for matters of external aggression.
  3. Land ownership and scholarships were exclusively reserved as well.
  4. The state of Kashmir can have its own flag and Kashmiris can enjoy dual citizenship.
  5. India was granted supreme power in the domains of:
    1. Defence
    2. External affairs
    3. Communication
Rest of the matters were at the discretion of the state. They required "concurrence and consultation" of the constituent assembly besides the say of the President.

Thus, granting it a special status that was not assigned to the 565 native states which integrated fully with the dominion of India. This also resulted in a domino effect that caused the decree of a Presidential order allowing modification to Article 370, thus leading to the formation of 35(a). This dealt primarily with matters concerning citizenship and was considered discriminatory against Dalits, Women and treated many Indians as 3rd class citizens.

Currently, the President or by extension, the government adhered to its manifesto, and added a sub clause 4(d) to Article 367, to read "constituent assembly" as "legislative assembly of the state" in Article 370(3).

Thus, overcoming the legal deadlock of the inability to abrogate. However, can such a decision be taken by the President in J&k, which was under Presidential rule?

Provisions:
Following the home ministry notification, the Constitution of Jammu and Kashmir and the Ranbir Penal Code has ceased to exist.The notification also announced several measures including application of central laws in the erstwhile state.

"... there are references in the state laws that have been applied to the Union Territory of Jammu and Kashmir, and the Union Territory of Ladakh to the expressions 'permanent residents' or 'hereditary state subjects'..., wherever they occur,shall be omitted," it said.

The references, by whatever form of words, to the "state of Jammu and Kashmir" or "Jammu and Kashmir" or "state" shall from October 31 be construed as "Union Territory of Jammu and Kashmir" or "Union Territory of Ladakh", as the case maybe, it said. For one, the 2019 notification "supersedes" the 1954 Order. And two, it declares that "all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir".

It was being speculated that the government would scrap Article 370 but this proposal was denied by reports observing that the Supreme Court is already dealing with multiple cases relating to Article 370 and Article 35A. Instead of scrapping Article 370, the government used the power given by the same Article to the President to make the provision ineffective:

"Article 370(3) reads, "Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify"

This amendment means that the Indian Constitution is fully applicable in Jammu and Kashmir.

Article 367 states:

  1. Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
  2. Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State ***, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor ***, as the case may be.
  3. For the purposes of this Constitution "foreign State" means any State other than India: Provided hat, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes may be specified in the order.

Questionable legality:

  1. The presidential order abrogating Article 370 was promulgated at a time when no legislative assembly was functioning in Jammu and Kashmir. This leads to a legal complication as Article 370 can only be abrogated by a vote of confidence in the Constituent Assembly.
  2. The resolution was passed when two of its chief ministers and other top party leaders were under house arrest. Some have pointed out that introducing such a sweeping resolution followed by a bill that attempts to carve up a state within the Union territory under President's Rule, as a fall back option, is problematic because the changes being introduced are permanent in nature.
  3. In the history of independent India, Union Territories became States, but never was a State reduced to the status of a Union Territory. This move goes against the federal and democratic nature of the constitution as it brings more powers under central control, when ideally the flow of power should be in the opposite direction.

Before Revocation:

  • Special powers exercised by J&K
  • If a woman from J&K marries out of state, she would lose the citizenship of the state
  • Dual citizenship
  • Separate flag for Jammu & Kashmir
  • Article 360 (Financial Emergency) not applicable
  • No reservation for minorities such as Hindus and Sikhs
  • Indian citizens from other states cannot buy land or property in J&K
  • RTI not applicable
  • Duration of Legislative Assembly for 6 years
  • Panchayats did not have any rights
  • Right to Education (RTE) was not applicable

After Revocation
No special powers now
If a woman marries out of state or country, she will still retain all her rights and Indian citizenship:

  • Single citizenship
  • Tricolour will be the only flag
  • Article 360 will be applicable
  • Minorities will be eligible for 16% reservation
  • People from other states will now be able to purchase

Land or property in J&K

  • RTI will be applicable
  • Duration of Legislative Assembly for 5 years
  • Panchayats will have the same rights as in other state
  • Children in the state will benefit from RTE


Positive implications:
The arguments for this move are stated below:

  1. Economic powerhouse and education: Kashmir has done well in many fronts, be it infant mortality, schools per household or even gender ratio. Due to the restrictions on land ownership it's yet to unleash is true potential. Introduction of MNCs could create job opportunities and overall prosperity.
     
  2. Infrastructure: Building of schools, hospitals and various recreational zones could help educate and aid in overall development. In a study, conducted by Doctor's beyond borders, J&K had a very high percentage of mental health issues (especially PTSD) compared to the national average. Hence, the need for art, literature and proper health care becomes of paramount importance in a state that for the most part lives in the womb of hostility.
     
  3. Insurgency and militancy: The people of Kashmir lived in constant duress due to the attacks by Pakistan, lack of employment and isolation. Abrogation would lead to a feeling of national integration amongst the previously ostracized Kashmiris.
     
  4. Rehabilitation and nationwide investment: This would also serve as a means of rehabilitating the Kashmiri Pandits dispossessed by the phase of exodus. Land ownership would now mean that citizens of the country can now invest thus increasing national integration.
     
Negative implications:
While some have called the move an assault on constitutional values and argue about its validity, the brunt of the consequent actions has been shouldered by the citizens.

The following highlight the plight of the natives:

  1. Over-excessive militarization of areas:
    AFSPA has been in accordance since long. Public fear towards armed men gunning down militants on a daily basis is to be expected.Due to this many parents do not send their kids to school; a lot of areas have been vacated completely.
     
  2. Restriction of movement:
    Traveling even short distances invites trouble from the JK police authorities. Multiple charges of corruption have been made against the authorities that accept bribes allowing natives to travel from one checkpoint to the other.
     
  3. Violation of human rights:
    The action was followed by grave rights violations coupled with arbitrary detention of hundreds of people, a total communications blackout, and severe restrictions on freedom of movement and peaceful assembly. The authorities have, since then, restored the internet, but have doubled-down on their crackdown on media and civil society groups, via the frequent use of counter-terrorism and public safety laws.
     
  4. Breach of privacy:
    Units of ethical hackers have been formed by the govt. to scan and monitor "anti-national" content. Reviewing balance and transaction histories of local's bank accounts, phone tapping, and unwarranted searches are just a few examples of this violation.
     
  5. No access to the internet:
    Under the apprehension of videos and hate speeches with the "Anti-National" content getting out, or info trading with the bordering countries, or even using the internet to mobilize protests and riots, the authorities shut down the internet. While one could justify this move, the burden felt by the locals for more than 2 years was not only inhumane, but also unconstitutional.
     
  6. Right to Freedom of speech violated:
    lawful assemblies suspended and the internet shutdown, freedom of speech has been reduced to nothing. Most of the locals are apprehensive of crackdown from the authorities if they do speak and, in that fear, remain silent. Special Task Force (STF), and recruitment of cyber volunteers, to monitor social media accounts, including of public servants, for 'anti-national' content.
     
  7. Violation of Press-rights:
    Freedom of the press in India is legally protected by the Amendment to the constitution of India, while the sovereignty,national integrity, and moral principles are generally protected by the law of India to maintain a hybrid legal system for independent journalism. However, with the heavy restrictions on travel to Jammu and Kashmir, and the abatement of the media within the territory is looked at as an effort to keep things under the wraps.
     
  8. Suffering Economy:
    Improper restrictions on travel and over militarization of areas under AFSPA coupled with the relinquishing traders within the borders exact a heavy toll on the economy in both the macro and micro perspectives.

     

Conclusion:
The amendment declaring Article 370 null and void was essential to India's sovereignty and long overdue. The importance of legality behind each decision was elucidated well and the intentions seemed citizen oriented however, the implementation was haphazard. Only time will tell how historic or in fructuous this move was.

References::

  1. Prabhas K Dutta. (2019, Aug 6). Kashmir: "How Govt used Article 370 to kill Article 370". Indian today. https://www.indiatoday.in/india/story/kashmir-article-370-ladakh-jammu-1577321-2019-08-05
  2. Kelly Buchanan. (2019, October 3). "Article 370 and the Removal of Jammu and Kashmir's Special Status". Library of congress. https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-special-status/
  3. Krishnadas Rajagopal. (2021, November 28)."President's Order scraps its predecessor and amends Article 370". The hindu. https://www.thehindu.com/news/national/explained-presidents-order-scraps-its-predecessor-and-amends-article-370/article61587647.ece
    "Jammu Kashmir no more a state; Union Territories of J-K and Ladakh come into existence". (2020, Jul 16). Hindustan times. https://www.hindustantimes.com/india-news/jammu-kashmir-no-more-a-state-union-territories-of-j-k-and-ladakh-come-into-existence/story-Si0Ck82wR5idYkAzVfUCgK.html
  4. Prabhash K Dutta. (2019, Aug 6). "Article 370 has not been scrapped. What does Modi govt move on Kashmir mean?". India today. https://www.indiatoday.in/news-analysis/story/article-370-has-not-been-scrapped-what-does-modi-govt-move-on-kashmir-mean-1577411-2019-08-05
  5. "Two Years Since Abrogation of Article 370: Human Rights in Jammu and Kashmir." (2021, 05 Aug). Newsclick. https://www.newsclick.in/Two-Years-Since-Abrogation-Article-370-Human-Rights-Jammu-Kashmir
  6. "India: Repression Persists in Jammu and Kashmir" (2022, August 2). Human rights watch. https://www.hrw.org/news/2022/08/02/india-repression-persists-jammu-and-kashmir
  7. Faizan Mustafa. (Nov 04, 2022). "Explained: What are Articles 370 and 35A?". Indian express. https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/
  8. Shubham Borkar and Lakshay Kewalramani. (2019, 27 February). "India: All About Article 370 (Jammu & Kashmir) From Dawn Till Dusk". Mondaq. https://www.mondaq.com/india/constitutional-administrative-law/785148/all-about-article-370-jammu-kashmir-from-dawn-till-dusk
  9. Article 370: A Short History of Kashmir's Accession to India. (2019, 06 august). Epw, Engage. https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india
  10. Jeet H Shroff. (2019, 06 august). "Four reasons why the Presidential Order on Kashmir is not kosher, yet". Business line, The Hindu. https://www.thehindubusinessline.com/opinion/three-reasons-why-the-presidential-order-on-kashmir-is-not-kosher-yet/article28836245.ece
  11. Article 370: What happened with Kashmir and why it matters. (2019, 06 august). The BBC news. https://www.bbc.com/news/world-asia-india-49234708
  12. Mr. Shubham Borkar. (2019, 2nd february). "All about Article 270 (Jammu and Kashmir) From Dawn till Dusk". Khurana and khurana. https://www.khuranaandkhurana.com/2019/02/22/all-about-article-370-jammu-kashmir-from-dawn-till-dusk/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

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