- IT’s Input
- What is Article 370?
- Provisions of Article 370
- Changes made by Presidential order
- Can Article 370 be deleted?
- How does article 371 has been used to render the constitution of Jammu and
- Judicial Review
- Does it become easier for authorities to deal with problems in Kashmir?
- What are the problems article 370 caused until now?
- Willingness of Ladakh to join India
- Fallout of article 370
- Can there be a possibility of separatist movement in J&K similar to Punjab?
Article 370 Abrogation & Implications
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- Recently, the home minister announced in the Rajya sabha that the government has repealed Article 370 of the constitution which grants special status to Jammu and Kashmir
- The government also decided to bifurcate the state into two union territories: i) Jammu and Kashmir which will have a legislature and ii) Ladakh which will be without a legislature.
- Before the repel of Article 370, Section 144 was imposed in J&K suspending Internet services and mobile services as well as all public gatherings in Srinagar.
What is Article 370?
- Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”.
Provisions of Article 370
- Except for defence, foreign affairs, finance and communications, Parliament needs the J&K government’s concurrence for applying all other laws. Thus, the J&K’s residents live under a separate set of laws, including those related to citizenship and fundamental rights, as compared to other Indians.
- Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
- The Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression.
- The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
Changes made by Presidential order
- The president made two changes :
- President replaced the constitutional order of 1954 with the Constitution order of 2019 which means all amendments to the Constitution of J&K, under the 1954 constitutional order, are superseded by 2019 order.
- The President made one modification to Article 367 (interpretation clause of the Constitution) by inserting a new sub-clause (4)(d) which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”.
Can Article 370 be deleted?
- Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly.
- After farming J&K constitution in November 1956, the constituent assembly was dissolved on January 26, 1957.
- One view is it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.
How does article 371 has been used to render the constitution of Jammu and Kashmir?
- Article 371(Special provisions for some states for upliftment of minorities) refers to Government of state and the government of the state has been interpreted as a reference to the governor of the state.
- Now, the Governor, including J&K, is appointed by the president. Hence, article 371 has been taken pursuant to the power of President.
- Under Article 371 (a and b), Indian parliament can make laws on the issues identified in the instrument of accession (defence, communication and external affairs) with the ‘consultation’ of the J&K government.
- But for those matters, related to Union and concurrent list, not falling in above three category, the parliament needs the ‘concurrence’ of J&K government.
- Now, Article 371 (d) refers to the power of president to apply other provision (other than provisions of Article 370) of Indian constitution to J&K.
- Hence, the recent presidential constitutional order of 2019 refers to the Article 371 (d).
- The abrogation of Article 370 could be challenge in the court on the basis of whether it violates the basic structure of the constitution.
- On the other hand, there was argument that J&K could not be the integral part of India where several fundamental rights were violated under Article 35-A (part of Article 370).
- However, as Article 370 is in Part XXI of the Constitution which talks about temporary and transitional provisions, it is unlikely to be challenged in the Supreme Court on the ground of basic structure of constitution.
- Also, after scrapping article 370, all the petitions related to violation of fundamental rights under Article 370 and 35A will become insignificant.
Does it become easier for authorities to deal with problems in Kashmir?
- The success of removing article 370 would depend on how well the current civil security situation in J&K is handled and how well threats being instigated from across the border to create turmoil in J&K can be contained.
- Moreover, if the people of J&K can understand the benefits of a giving the status of Union Territory to J&K, such as more development and more employment, the government can handle the situation safely.
What are the problems article 370 caused until now?
- Article 35A created a division, by empowering the state government to decide who the permanent residents are and who are not. The discrimination was prevailed in the field of education, government employment and voting rights.
- Moreover, due to article 35A, non-resident people living in J&K for generations were discriminated even though J&K is a part of Secular India which provides protection to fundamental rights.
Willingness of Ladakh to join India
- In 1949, the Buddhist Association of Ladakh, wrote a letter to Prime Minister, saying that Ladakh has always had different identity from Kashmir and it has also been part of Tibet.
- Ladakh was annexed in 1834 by J&K king Sikh Zorawar Singh, before the formation of state of Kashmir under the Treaty of Amritsar in 1846.
- Therefore, even if Kashmir decided in past to stay independent or merge with Pakistan, Ladakh wants to be with India and not with Tibet.
- Considering the geopolitical sensitive nature of Ladakh, the fact that it shall be without a legislature and shall be directly under the control of the Union is immensely beneficial as it gives access to Afghanistan as well as China.
Fallout of article 370
- The downside of Article 370 is not making Jammu and Kashmir a state. However, in future, the J&K can be again given the status of state.
- Reduction of the of the state of Jammu and Kashmir, to a Union Territory legislature but this would tend to give a fillip to the concept of the Constitution being more unitary than federal in character.
Can there be a possibility of separatist movement in J&K similar to Punjab?
- The parallels of Punjab separatists movement (known as Khalistan movement which seeks to create a separate country called Khalistan in the Punjab) is different from J&K.
- The J&K has more complex issues than Punjab because of the militancy aspect and extent of control exercised from across the border.
- For example, Pakistan could adopt some measures to intensify the infiltration of some non-state actors to instigate more civil strife in J&K.
- Also, Pakistan could take the whole issue to international level in various ways such citing UNSC Shimla agreement etc. which India needs to handle through its own diplomatic initiative.
- The Shia Muslims of the area of Kargil should be brought into the inclusivity aspect of governance of J&K as they have roots in gilgit-baltistan which India can used and developed later on.
- The status of Jammu and Kashmir should be restored gradually as it will heal the sentiments of the people of Jammu and Kashmir.
- Demographic balance will be soon restored in the region post revocation of Article 35A.
- However, government should address the alienation of the youth in J&K valley by showing them the benefits of the step taken by the government.
- The benefits can be seen when people from outside the state will invest in J&K, creating employment and other developmental activates.
- Hence, removing the psychological barrier of separatism from the youth as well people of J&K is the need of the hour.
What is United Nations Security Council (UNSC) Resolution 47?
- The United Nations Security Council Resolution 47, adopted in 1948, concerns the resolution of the Kashmir conflict.
How did it come into effect?
- In October 1947, following an invasion by soldiers from the Pakistan Army, the Maharaja of Kashmir, Hari Singh sought assistance from India and signed the Instrument of Accession (acceded J&K into India).
- After the first war in Kashmir(1947-1948), India approached the UN Security Council to bring the conflict in Kashmir to the notice of Security Council members.
What was the recommendations of UNSC resolution 47?
The Resolution recommended a three-step process for the resolution of the dispute.
- In the first step, Pakistan was asked to withdraw all its nationals from Kashmir.
- In the second step, India was asked to progressively reduce its forces to the minimum levelrequired for law and order.
- In the third step, India was asked to appoint a plebiscite administratornominated by the United Nations who would conduct a plebiscite (a free and impartial voting to know the people’s desire about J&K merger (with India or Pakistan)).
How did India & Pakistan react to the UNSC Resolution 47?
- Both countries rejected Resolution 47.
India rejected it for several reasons:
- The resolution ignored the military invasion by Pakistan.
- The Maharaja of Kashmir, Hari Singh had already signed the Instrument of Accession. Hence there is no need for Plebiscite (voting).
- Ther resolution did not allow India to retain military presence which it believed it needed for defence.
- The Resolution’s order to form a coalition government, would also put Sheikh Abdullah, the then Prime Minister of Jammu & Kashmir, in a difficult position.
- India also believed that the powers conferred on the Plebiscite Administrator undermined the state’s sovereignty.