REVOCATION OF THE SPECIAL STATUS OF JAMMU & KASHMIR- ARTICLE 370 – By SOHINI BISWAS

Jammu and Kashmir is a state in the Himalayan region, administered by India as a country consisting of the larger part of Kashmir. On 5 August 2019, the Government of India issued an order under the power of Article 370, overriding the prevailing 1954 Presidential Order nullifying all the provisions of the limited autonomy or special status granted to Jammu and Kashmir by the Indian Constitution. Thus, the Home Minister, in 2019, introduced a Reorganization Bill in the Indian Parliament, seeking to divide the state into two Union Territories to be governed by a lieutenant governor and a unicameral legislature.

History behind the conflict and dispute over Kashmir

To understand the notion behind the revocation of article 370, it is important to look at how the special status came into being. During Independence and the partition of India and Pakistan, princely states or regions that were ruled by a local leader in alliance with the British Raj went through a process of integrating with either of the two countries. The then ruler of Jammu and Kashmir, Raja Hari Singh, by signing the Instrument of Accession treaty, decided to be a part of India. But, unlike most other states, the treaty set a crucial pre-condition i.e. the local government of Jammu and Kashmir would make laws on all aspects of the state except three -foreign relations, defense and communications.

Thus, Article 370 was incorporated when India adopted its Constitution. Subsequently, it became the basis for several privileges that were announced for people of J&K, such as restricting people from outside of the state to buy property or claim right to employment.

However, The state has been the subject of dispute between India, Pakistan and China since 1947. There has been violence in the Indian-administered side, the state of Jammu and Kashmir for 30 years due to a separatist insurgency against Indian rule.

Legal and constitutional status of Kashmir prior to the revocation of article 370

Article 370 of the Constitution of India is described as a “temporary provision” that grants the state of Jammu and Kashmir a special autonomous status within the Indian union. Under article 370(1)(b), the Union Parliament can only make laws for the state, in consultation with the Government of the State, on certain matters that were specified in the Instrument of Accession; namely defense, foreign affairs, and communications. Other matters in the legislative subject lists can apply to Jammu and Kashmir only with the concurrence of the Government of the State through a presidential order. Article 370(1)(d) stipulates that other constitutional provisions may be applied to the state from time to time, subject to such modifications or exceptions made by the president of India, also through a presidential order, as long as they do not fall within the matters referred to above and except with the concurrence of the state government.
As a result of the a special status, the state of Jammu and Kashmir enacted its own Constitution along with a separate flag which was formally adopted by a Constituent Assembly on November 17, 1956, and entered into force on January 26, 1957. However, the most important part of article 370 for purposes of recent developments is article 370(3), which gives the president of India the power to amend or repeal article 370 itself through a public notification, provided that the recommendation of the Constituent Assembly of the State is given before the president issues such a notification.

Significance of article 35A

Article 35A allowed the state legislature to define the Jammu and Kashmir’s permanent residents. The article had been inserted via the Constitution (Application to J&K) Order, 1954. It was issued by the then President Rajendra Prasad under Article 370 on Prime Minister Nehru’s advice. The state’s Constitution, at the time of its adoption in 1956, defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident for 10 years, and has lawfully acquired immovable property.

The clause meant that no outsider was allowed to own property in J&K or get a state job. The article is also known as the Permanent Residents Law. Among other things, it deprived the female residents of the state of property rights if or when they marry an ‘outsider’. The provision also extended to children born of any such women.

Current status on the land of J&K

After Kashmir’s special status is no longer in operation, people from anywhere in India are now permitted to buy property and permanently settle in the state. This has initiated agitations in the mind of Kashmiris as they think it would lead to the state’s demographic transformation from majority Muslim to majority Hindu.

A separate Union Territory has been created for Jammu & Kashmir with legislature keeping in view the prevailing internal security situation, fueled by cross-border terrorism in the existing state of J&K. Further, the Ladakh region has also been being given the status of a Union Territory, without legislature. According to the presidential promulgation, all the provisions of the Constitution of India shall now be applicable in relation to the state of Jammu and Kashmir. For the purpose, a clause 4 has been added to Article 367 to introduce further changes.

Government’s rationale

Prime Minister Narendra Modi and the Hindu nationalist Bhartiya Janta Party had long opposed Article 370 and revoking it was the part of their 2019 election manifesto. They contended that, article 370 was required to be scrapped to integrate Kashmir and put it on the same footing as the rest of India.

However, Many Kashmiris believe that the government’s ultimate motive is to change the demographic character of the Muslim-majority region by allowing non-Kashmiris to buy land there.

Pakistan’s response

The Foreign Ministry of Pakistan issued a statement stating India’s revocation was an illegal “unilateral step”. Pakistan’s army chief said that the Pakistan Army would “go to any extent” to support the people of Kashmir. An emergency joint parliamentary sitting of Pakistan passed a resolution to condemn India’s move. Even a meeting of the National Security Committee decided to downgrade Pakistan’s diplomatic relations with India. Further, the Samjhauta Express train service and the Thar Express were suspended. All cultural exchanges with India were suspended, including banning the screening of Indian films and dramas inside Pakistan. Pakistan also formally suspended most of its trade relations with India.

On 4 August 2020, Pakistan’s government released an updated political map which included Pakistan’s territorial claims on Jammu and Kashmir, Ladakh, the Siachen Glacier, the eastern banks of Sir Creek, as well as Junagadh and Manavadar in India’s Gujarat’s region. The map also annotated Ladakh’s boundary with China as “frontier undefined”, whose status would be formalized by “the sovereign authorities concerned after the settlement of the Jammu and Kashmir dispute. The map was adopted for official use throughout Pakistan. The government renamed the Kashmir Highway, which runs through Islamabad, as Highway of Srinagar. Rallies and seminars were arranged to express solidarity with Kashmiris

China’s response

Chinese Foreign Ministry opposed the integration of the Ladakh Union Territory into India’s administrative jurisdiction, saying “it undermined China’s territorial sovereignty” . It even said that “India’s action is unacceptable and would not have any legal effect,” regarding disputed territory on the Indo-China Border Regarding Kashmir in general, it affirmed that “the Kashmir issue is an issue left from the past between India and Pakistan”. On 9 August, Chinese Foreign Minister Wang Yi after meeting with Pakistani Foreign Minister Shah Mehmood Qureshi said that China is “seriously concerned about the turbulence and escalating tensions” in Kashmir, and that “China will continue to firmly support the Pakistan side in safeguarding its legitimate rights.”

Legal Challenges considered by the Supreme Court

The revocation of article 370 faced a number of legal challenges, according to lawyers and legal experts. Firstly, the question remained, whether the concurrence of the government of the state of Jammu and Kashmir was duly received? Prior to the date of abrogation of article 370, the state was under direct presidential rule under article 356 of the Constitution after the BJP withdrew from an alliance with a regional party and the governor of the state dissolved the state assembly. According to a lawyer, “the Governor is a representative of the Central Government like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.” Another objection raised was that article 370(1)(c) prevents the president from using his power of amendment in the Constitution (as applicable to Jammu and Kashmir) to amend article 370 itself, even if it is done indirectly. The normal amendment procedure under article 368 would have to be utilized. A constitutional expert, told that it was “an illegal decision, akin to committing fraud” that could be challenged in the Supreme Court. Opposition political parties could launch a legal challenge but Kashmir is a sensitive issue for many Indians, and most parties would be wary of opposing the move lest they be branded anti-India that could leave any challenge up to individuals or activists. There were various other objections raised and petitions filed in the Apex Court which challenged the abrogation of article 370 and Jammu and Kashmir’s special status.

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