Scrapping Article 370: Way Forward For Kashmir

Published : Sep 02, 2019 10:23 am | By: M D Sridharan

By abrogating Article 370, Modi government not only rewrite the history but also achieved what was considered impossible in the last seven decades. Now the onus is on Modi government to ensure peace and bringing development to the valley.

On 5th of August, 2019, Amit Shah, the Union Minister for Home Affairs announced that the government has decided to repeal Article 370 of the Constitution which grants special status to Jammu and Kashmir. The government has also decided to bifurcate the state into two Union Territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature. President Ram Nath Kovind signed the Constitution (application to Jammu and Kashmir) Order, 2019, formalising the move by the Modi led BJP government.

Article 370 is a “temporary provision” that serves the purpose of granting special autonomous status to Jammu and Kashmir and provides temporary provisions to the state of Jammu and Kashmir that are not applicable to other states. The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, shall not apply to the state of Jammu and Kashmir. Since its accession to India, Jammu and Kashmir has been enjoying the special status.

How Article 370 came to be imposed in J&K?

In October 1947, when Hari Singh, the then Maharaja of Kashmir signed the ‘Instrument of Accession’ with the government of India, he handed over the control of three main departments: Foreign affairs, Defence and Communications. Subsequently, in March 1948, the Maharaja appointed Sheikh Abdullah, the founder of National Conference, as the prime minister of the interim government in the state.

In 1949, the then Prime Minister Jawaharlal Nehru had directed Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of a suitable article to be included in the Constitution. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370.. Article 370 was eventually drafted by Gopalaswami Ayyangar, who was a minister without portfolio in the first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir.

In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of Jammu and Kashmir, leading to the adoption of Article 370.

 Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions. The original draft explained "the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948". On November 15, 1952, it was changed to "the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office."

Since then, the state has been enjoying the special powers. Accordingly, except defence, foreign affairs, finance, and communications, the Parliament needs the Jammu and Kashmir government's nod for applying laws in the state.  Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.

The laws of citizenship, ownership of property, and fundamental rights of the residents of Jammu and Kashmir are different from the residents living in the rest of India. Under Article 370, citizens from other states cannot buy property in Jammu and Kashmir and the Centre has no power to declare a financial emergency.

Besides, Article 35A gives the Jammu and Kashmir legislature full discretionary power to decide who the 'permanent residents' of the state are. It gives them special rights and privileges regarding employment with the state government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the state government provides. It also allows the state legislature to impose any restrictions upon persons other than the permanent residents regarding the above. Further, the Article empowers the state legislature that no act of the state legislature that comes under it can be challenged for violating the Constitution or any other laws.

BJP and Article 370

BJP has always been up against providing special powers to Jammu & Kashmir and the party has been protesting that the state should not have laws independent of the Indian constitution.

For the BJP, Article 370 and Uniform Civil Code have remained as the main agenda since the days Shyama Prasad Mookerjee, who founded the parent organisation of BJP – Bharatiya Jan Sangh (BJS).  “Ek desh mein do Vidhan, do Pradhan aur do Nishan nahi challenge,” (“Ours is one country, we cannot have two constitutions, two prime ministers, and two flags”) was the slogan with which Shyama Prasad Mookerjee marched to Jammu & Kashmir to register his protest against Article 370 and back the agitation launched by Jammu Praja Parishad and he suspiciously died in jail in 1953 in Jammu & Kashmir.  Mookerjee had sown the seeds of nationalist politics and later BJP made it as the part of its wide nationalist idea of India.

But political compulsions forced it to keep it on the backburner when it had to run coalition governments under  Atal Bihari Vajpayee who became Prime Minister during 1998-2004.  Over the years, Article 370 became the main plank for the BJP to attack Congress and accuse Independent India’s first Prime Minister, Jawaharlal Nehru for handling the Kashmir issue.  In 2014, when Modi wave swept across the nation and BJP came to power with a full majority, indeed Modi government wanted to push its agenda of revoking Article 370. But it lacked the adequate numbers in  Rajya Sabha — the party had less than 50 members in 245-strong Rajya Sabha in 2014  and  restrained  from pushing its agenda on Article 370.

The Saffron party even went ahead with a coalition government in Jammu and Kashmir with Peoples Democratic Party in 2014, but broke away due to ideological differences midway.

With the remarkable victory in 2019 Lok Sabha elections, the party enhanced its numbers and become even stronger than in 2014. With renewed energy, this time the BJP decided to call the shots. A closer look reveals that the BJP executed its strategies cautiously in a measured manner. First, the party pushed its long pending Triple Talaq legislation and through which it substantially won the hearts of millions of Muslim women. Then went ahead to rewrite history by abrogating Article 370.

Is the move Unconstitutional?           

Ever since Amit Shah, made the announcement on the abrogation of Article 370, many questions have been raised on the centre’s decision. While, without doubt the move will fundamentally alter the character of Jammu and Kashmir and will have a far reaching impact in the state, opposition parties claim it as an undemocratic and unconstitutional move. They also point out that it is the first time in the history of independent India that a state has been demoted to a union territory.

But the centre has given an assurance that Jammu and Kashmir might one day regain statehood and it is only an interim measure. The centre also pointed out that Article 370 had been a major impediment to Jammu and Kashmir’s development because it entrenched corruption and nepotism.

While the opposition parties are claiming that scraping Article 370 is unconstitutional, the fact remains that the government’s move complies with all legal requirements.

Broadly the Article 370 was considered as the contractual obligation of the Indian State with the promises that were made to the then independent princely state of Jammu and Kashmir.

Actually, the provision of Article 370 was negotiated mainly to protect the unstable political situation of the state resulting from the Pakistani invasion and guard the state. But, it was proved that such a measure miserably failed to neither save the state nor alleviate the problem. Even after 70 years, the political situation failed to influence any positive change and it was very much apparent that the crisis was not eased out through Article 370.

On the other hand, all these decades it has only helped some political parties to maintain status quo for their own political mileage. Now, the abrogation of Article 370 will redefine the relationships of the state of Jammu and Kashmir with the Indian government as well as the political dynamics of the state.

The Impact of Abrogation Article 370

With the abrogation of Article 370, the state will witness tectonic shift as all laws will now be applicable to the proposed Union Territories of Jammu and Kashmir and Ladakh. All laws passed by Parliament will be extended to the proposed Union Territories without exception right from property related laws, criminal laws, education laws to Indian Penal Code and crucial central laws like RTI will be applicable as in the rest of India. 

Most importantly, the permanent citizens of Jammu and Kashmir recognised as state subjects will cease to have special privileges.  Hitherto, the Article 35A that barred the Indian citizens from other states from buying land, holding government jobs in the state will no longer be in force.  Also until now, the Article 35A was also used as a discriminatory tool against women of Kashmiri origin who have married outside the state

Now, with the abrogation of Article 370, all citizens of India can exercise their fundamental right to move freely throughout the territory of India and to reside and settle in any part of India guaranteed under Article 19. Further the move would allow the transfer of immovable property in favour of non-permanent residents of the state.

Another  significant change will be the important statutes governing criminal trials The  laws related to the criminal justice system in the  country like  The Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act  besides National Security Act, Prevention of Corruption Act, Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, The Protection of Children From Sexual Offences Act and The Juvenile Justice (Care & Protection of Children) Act will now be applicable in the state.

Further, central legislation such as the Right to Information Act, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act are also applicable in the state. Among personal laws, the Muslim Women (Protection of Rights on Divorce) Act and the Special Marriage Act are also applicable. In addition, other personal laws enacted by the Centre, The Hindu Succession Act and The Muslim Personal Law (Shariet) Application Act are applicable to the region.

The High Court of Jammu and Kashmir shall continue to be the common constitutional court for both the proposed UTs. The Bill also states that the power to make to laws relating to All India Services and Anti-Corruption Bureau will lie solely with the Lieutenant Governor.

Under Section 73 of the Bill, the President can suspend any or all provisions of the law if a situation arises where it is necessary or expedient to do so in the light of failure of constitutional machinery. This move can be made by the President, acting on a report from the Lieutenant Governor or otherwise.

Three pieces of legislation related to the protection of women and children that were not enacted by the Jammu & Kashmir Assembly and are now proposed under the bill are: The Dowry Prohibition Act, 1961; The Prohibition of Child Marriage Act and Indecent Representation of Women (Prohibition) Act, 1986. The Bill also proposes that Whistle Blowers Protection Act, 2014 applicable to the region.

Fuming Pakistan

The decision by the Modi government to abrogate Article 370 left the Pakistan government unnerved. Immediately after India revoked Article 370, Pakistan Ministry of Foreign Affairs issued a statement stating, "As a party to this international dispute, Pakistan will exercise all possible options to counter the illegal steps."

After the Indian government ended the special status of Jammu & Kashmir, as expected Pakistan cried foul. Immediately, the Pakistan Prime Minister Imran Khan called for special session of parliament and launched an all-out campaign against India at all possible levels. He warned of another Pulwama kind of terror incident in which forty Indian soldiers had died in a suicide attack on a convoy of the Central Reserve Police Force in February this year.

Pakistan banned  the trade relations with India Pakistan, banned the airing of advertisements featuring Indian artists and also cancelled Samjhauta express train services - that runs between Delhi and Attari in India and Lahore in Pakistan as part of the country's protest against India.

Further, Pakistan downgraded diplomatic relations with India and made fervent appeal to international community and sent out emissaries to the UN, Organisation of Islamic Cooperation (OIC) and China.

Pakistan also knocked the doors of the US to put pressure on India to reverse its decision to abrogate special status to Jammu and Kashmir. But the US, played neutral over the matter and clearly stated that Kashmir is a bilateral issue between India and Pakistan.

Besides, Pakistan’s efforts to internationalise Kashmir issue was also snubbed by the United Nations Security Council (UNSC). In a rare closed door consultation by the UNSC on the Kashmir issue, the majority of the 15 members found no weight and stressed it as a bilateral matter between New Delhi and Islamabad. Besides Pakistan, the decision of UNSC is also a blow to Pakistan’s all weather ally China, which supported

Pakistan's high-pitched campaign has left the country more isolated than ever on Kashmir. While  Pakistan geared up to  create an alarming environment after the move, India warned the neighbour to stay off as it  is absolutely an internal matter and whatever has been done so far  is within the boundaries of the Indian Constitution.

Also, the terror outfits in Pakistan occupied Kashmir (PoK), regrouped and vouched to launch 'jihad' against India. This is not the first time that terrorists in Pakistan have openly carried out protests despite the country being in Grey List of Financial Action Task Force (FATF), the international watchdog which keeps an eye on laundering and financing of terrorism.

While Pakistan is expectedly furious about the move, people of Balochistan have expressed their solidarity with India and urged the Indian government to extend support to free their land from the domination of Pakistan and its military establishment.

Balochistan, the most volatile province in the south western borders of Pakistan has been struggling since 1948 against Pakistani occupation. The Baloch people say that they got independence from the British on August 11, 1947.

The province, rich in natural gas fields, has also accused China of plundering their economic wealth especially after the construction of modern transportation networks, numerous energy projects, and special economic zones under the China Pakistan Economic Corridor.

At a time when Islamabad sought action from the UN Security Council against India over Kashmir issue, the world has already taken note of Pakistan’s human rights violations in Balochistan.  After getting snubbed by UNSC, Pakistan has geared up to knock the doors of International Court of Justice (ICJ). India has categorically told the international community that the scrapping of Article 370 of the Constitution to revoke the special status of Jammu and Kashmir was an internal matter and also advised Pakistan to accept the reality

Modi Integrates Kashmir 

Undoubtedly, the Constitutional isolation of the state was highly instrumental in Kashmir’s current state of affairs. The politicians with vested interests used the Article 370 to further their interests and also allowed militancy to flourish. In the end for over 70 years the state was deprived of development in all fronts.

Indeed Modi government achieved what was considered impossible in the past 70 years.  Soon, after “TsuNamo” swept away the opposition in 2019 Lok Sabha elections, the National Conference leader Farooq Abdullah, openly challenged Modi. He said, “Even if Modi becomes the Prime Minister ten times, he wouldn’t have the courage to abolish Article 370”.

As Modi is against the concept of communal division of India and has always believed in the concept of ‘One Nation, One Constitution’, his unflinching determination to revoke the article of unfaith from the Constitution only became stronger after his stupendous victory. In just little over two months since assuming power for the second term as Prime Minister of India, Modi just achieved his “Mission Impossible”.

Modi has not only integrated Kashmir with India but also paved the way for the entire Kashmiris to move anywhere in India for education, employment as well as buying property and also provided similar rights to the fellow Indians to do so in Kashmir. In fact Article 370 has done more damage to Kashmir than development. As it paved the way for the isolation of the state, it only helped the separatists and the politicians with the vested interests. While other states witnessed rapid growth in all fronts be it education, health, infrastructure and jobs, Kashmiris were denied even basic infrastructure and the people suffered in silence.

While, decades of continued relevance of Article 370 in the state has cost the nation billions of rupees, thousands of lives have been lost the last seven decades. Decades of unrest has indeed pushed the state in to dark. Political masters with the backing of Pakistan, came up with sinister plans and the people were forced to face the terrorists and violence. The youths were brain washed to take up arms and act against their own people.

In his Independence Day address, Prime Minister Narendra Modi rightly outlined how exactly Jammu and Kashmir had been kept away from development without adequate central oversight. It is absolutely one of the major aspects that lead to the lack of development, high levels of corruption and lack of distribution of wealth to the common people in the state. The Union Territory status will bring in to the region far greater political and bureaucratic scrutiny.

Revoking the special status of Jammu and Kashmir has indeed opened the floodgates of development from India and the rest of the world. Since Jammu and Kashmir has now become a Union Territory, the Union Home Ministry has the final say.  The move will put an end to the corrupt local politicians and separatist leaders who have enjoyed greater power by fomenting trouble and in the process amassed riches.  Besides, it will also prevent terrorists from across the border to foment trouble.

More importantly, the abrogation of Article 370 not only make women enjoy their rights in Jammu and Kashmir. Kashmiri women would no longer be deprived of their property rights in Jammu and Kashmir, if they get married to a non-resident. Introducing the abrogation Bills on August 5, home minister Amit Shah said in Parliament, “Daughters of the state marrying outside the state lose their rights to property. It is so discriminatory to the women and their children. SC, ST and Tribal people have been discriminated against and have been deprived of reservation to political offices. Despite knowing this a few people have been perpetuating this article only for their political gains.” Prime Minister Narendra Modi also stressed the discrimination against women, “The daughters of Jammu & Kashmir were deprived of the right that our daughters had in rest of the states.”

Also, the move to scrap Article 370 has opened the doors for the thousands of displaced Kashmiri Pandits to return to their homeland with honour and dignity. They hope that Modi government will chalk out a road map of their return to the Valley soon.

To call the abrogation of Article 370 as unconstitutional is absolutely biased. As the fact remains that vested interest politicians and separatists cleverly indulged in political ploys to make them believe that the continuance of Article 370 is only for their good. It is time for the sceptical Kashmiri Muslims to realize that Article 370 has done more damage to them than good by keeping them alienated from the nation for seven decades. It is time that they accept the move as what the majority of the people of democratic republic of India feel that all Indians are equal citizens.

The fact that many Opposition parties supported the revocation and even Congress is divided over the issue, obviously proves that it is  a step in the right direction.  By and large, a majority of Indians as well as the people of  Kashmir who believe in democracy, has hailed the move not  only as historic, but  a welcome corrective measure that will free the beautiful state from the clutches of terrorism and move ahead  in to the path of  progress.

The Prime Minister has assured to return full statehood to Jammu and Kashmir. Restoring peace and bringing development to the valley is of paramount importance.  Improving the governance and ensuring quality administration remains the key to win back the confidence of the people of Kashmir for the Modi government.

 

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