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Challenging the Abrogation of Article 370

INTRODUCTION

Hari Singh, the Maharaja of Kashmir at the time, signed an Instrument of Accession in October 1947 that listed the areas in which Jammu & Kashmir would cede its authority to the Indian government: Defense and Foreign Affairs1. The Maharaja named Sheikh Abdullah as prime minister of the State’s temporary administration in March 1948. Sheikh Abdullah and three other associates entered the Indian Constituent Assembly in July 1949 and worked to negotiate J&K’s unique status, which resulted in the approval of Article 370. Sheikh Abdullah was the person who prepared the contentious clause. Except in the circumstances involving defense, foreign affairs, finance, and communications, the application of legislation in the State of Jammu & Kashmir requires the consent of the Jammu & Kashmir administration2.

Residents of Jammu and Kashmir are subject to distinct citizenship, property, and fundamental rights laws than those of the rest of India. Article 370 prohibits residents of other states from purchasing real estate in Jammu and Kashmir. The Centre is not authorized by Article 370 to declare a state financial emergency. It is vital to note that Article 370(1)(c) states explicitly that Kashmir is subject to Article 370’s application of Article 1 of the Indian Constitution. The Union’s states are listed in Article 1. This indicates that the State of J&K is bound to the Indian Union by Article 370. If Article 370 were repealed, which can be done by presidential order, the State would no longer be a part of India until new laws were passed that override it3.

ARTICLE 370

Article 370 of the Constitution grants the State autonomy. The transitional clause in this Article is taken from Part XXI of the Constitution’s “Temporary, Transitional and Unique Provisions,” which accords the State of Jammu and Kashmir special status. On October 17, 1949, this Article was added to the Constitution, exempting the State from the Indian Constitution save for Articles 1 and 370 and allowing the State to create its own Constitution. Additionally, it limits the legislative authority of the Parliament over Jammu and Kashmir4. Several laws and regulations in India are relevant to the entire country but do not apply to the State of Jammu and Kashmir. Except for topics about defense, foreign policy, finance, and communication, 94 of the 97 items on the Union List were within the State’s jurisdiction, thanks to this Article. However, before implementing any of the 94 items listed above, the State government must provide its consent because each State has its own set of laws. Regarding citizenship, ownership, and Fundamental Rights, the citizens of the State were subject to laws and regulations that were distinct from those of the Union. This made it impossible for any Indian national who is not a resident of Jammu and Kashmir to purchase real estate there5.

SALIENT FEATURES OF ARTICLE 370

The salient features of Article 370 are6

  1. The Constitution and flag of the State of Jammu and Kashmir are unique.
  2. Only the Governor’s rule may be declared in the State; the presidential rule cannot be. A financial emergency cannot be declared in the State under Article 360 by the Indian government. Only a national emergency can be declared in situations involving foreign hostility or war.
  3. The State’s criminal law is known as the Ranbir Penal Code.
  4. State residents have dual nationality.
  5. Kashmir’s legislators served six years instead of the other states’ five-year terms.

THE TEMPORARY CHARACTER OF ARTICLE 370

Article 370 has its personality. Simply consulting the state government is necessary for any issue involving the implementation of central law in the State of Jammu and Kashmir on the topics included in the Instrument of Accession. However, in some cases, the State Government’s approval is required. This results in significant distinctions since, in the former, dialogue takes place before direct approval from the other side, in this case, the state government, is required7.

Part XXI of the Constitution contains Article 370. This Article is transient because the Jammu and Kashmir Constituent Assembly has the authority to change, eliminate, or keep it in place. However, in its wisdom, the Jammu and Kashmir Constituent Assembly chose to keep it. The Instrument of Accession, which was only temporary until a vote was held to verify the public’s preference, is another factor contributing to its transient nature. Regarding the transitory nature of Article 370 of the Constitution, the court has expressed a few different judgments.

The Delhi High Court dismissed the plea in Kumari Vijaylaxmi Jha v. Union of India8 (2017), arguing that Article 370 was a transitory measure and that keeping it in place would be a constitutional deception. Even though Part XXI of the Constitution calls Article 370 “temporary,” the Supreme Court stated in the same case in April 2018 that it is not a transitory provision.

The Supreme Court’s Constitution Bench further noted the Prem Nath Kaul v. State of Jammu and Kashmir9 (1959) case and stated that the effect and application of Article 370 must be assessed in light of its purpose and its provisions in light of the unique characteristics of the constitutional relationship between the State and India. The basic tenet of the interim arrangement under the Article is that the State’s Constituent Assembly will decide how the State and the nation will interact.

However, in Sampat Prakash v. State of Jammu and Kashmir10 (1986), a different panel of the Apex Court observed that Article 370 can still be used even after the dissolution of Jammu and Kashmir’s Constituent Assembly. Additionally, the Supreme Court declined to take Article 370 into account as an interim rule. The five-judge panel concluded that because Article 370 has never been restricted from being in effect, it is by nature perpetual. It further said that if the Article becomes a permanent part of our Constitution, it cannot be changed and would become a part of the fundamental framework. Article 368 of the Constitution states that the Parliament may amend any section, but amendments must not repeal the Constitution or change any of its fundamental principles.

PETITIONS CHALLENGING ABROGATION

Article 370 was the subject of several conflicting arguments. On the one side, it was maintained that the Article was only transitory and was no longer legitimate or necessary, while on the other, there was an ongoing defense of the Government of India’s continued use of Article 370. In the Sampat case, the Supreme Court further explained this clause using Article 21 as an example. According to the Court, the term “right to life,” as used in Article 21 of the Constitution, refers to the right to live in dignity.

It implies that any temporary arrangement may be considered “special.” The 13th amendment to the Constitution was passed in 1962, and as a result, the word “Special” was added to the title of the above section11. A Presidential Order from August 5, 2019, which weakened Article 370, has been contested in the applications. There are now up to 23 petitions before the Supreme Court. The petitioners include a broad spectrum of attorneys, activists, politicians, and retired government workers.

The petitioners include a wide spectrum of attorneys, activists, politicians, and retired government workers. Since 1954, in line with the Instrument of Accession, the Article has granted the people of Jammu and Kashmir rights and advantages. Jammu and Kashmir were granted special status by adding Article 35A to the Constitution. On the recommendation of the Jawaharlal Nehru Cabinet, President Rajendra Prasad included Article 35A by executive order in 1954. When the President inserted Article 35A into the Constitution by a Presidential Order under Article 370, the Parliament was not consulted. The Jammu and Kashmir (Reorganisation) Act of 2019 took effect after the State of Jammu and Kashmir was abrogated, dividing it into two Union Territories: Jammu and Kashmir and Ladakh. Jammu and Kashmir lost their complete statehood in a day and changed to a union territory under the central government’s control. Lockdown conditions had been in place in the Valley prior to the transfer. To contend that there were various petitions filed before the court.

The points discussed by the petitioners before the court on the abrogation of the article are,

  • They have questioned the Union Governments’ swift action to “unilaterally dissolve the special federal arrangement, under the guise of President’s Rule, while eroding essential parts of due process and the rule of law.”
  • According to the petitioners, what transpired in Jammu and Kashmir “goes to the heart of Indian federalism.” “A diverse federal structure best serves national integration. Under this model, one size need not always fit all,” the petition filed by the NC said. The petitions claimed that to alter the fundamental nature of a federal unit, the Presidential Order of August of that year replaced the approval of the Governor of the State government12.
  • Removing Article 370 from the Indian Constitution, according to its detractors, would essentially result in the dissolution of the legal connection between India and the state of Jammu and Kashmir.
  • When considering the effects of disconnecting Jammu and Kashmir from India’s territory, one would come to the conclusion that it would cause intercommunal fighting and put the relationship between India and Jammu and Kashmir in danger.
  • The argument made was that if the government moves further with the repeal of article 370, the whole area of Jammu and Kashmir will be in danger. It was also said that a “heap of explosives” was spotted in the J&K region and that this was discovered.
  • They claimed that the Presidential Order changed the status of the State of Jammu and Kashmir fundamentally, permanently, and irrevocably without the consent, consultation, or recommendation of the people of that State acting through their elected representatives.
  • Two of the three wars between India and Pakistan—which took place in the years 1947 and 1999 were fought over the state of Jammu and Kashmir. More similar events would occur if the Jammu and Kashmir problem was brought up again. Because the issue of repealing Article 370 as a whole is so delicate and contentious, it is imperative that it be handled with care and maturity.
  • The democratic freedoms and liberties that had been promised to the people of Jammu and Kashmir upon their accession had tantamount to being revoked overnight. Article 370’s primary goal was to enable the gradual and orderly expansion of constitutional provisions to the State by demands and requirements without amending the Constitution.
  • The Order assumed that the legislative assembly of the State of Jammu and Kashmir had a power that its Constitution, under Article 147, denied to it by replacing the recommendation of the “Constituent Assembly” with that of the “Legislative Assembly” in order to change the terms of Article 370. Therefore, according to the petitions, the Order was ineffectual. The administration has responded that the August 5 Presidential Order is now a “fact accomplish.”13
  • When hearing petitions against the August 5 ruling and the subsequent division of the State of Jammu and Kashmir into two Union Territories, the administration pleaded with the court to reject any “separatist” arguments.

Article 370 repeal is not particularly opposed by the people of Ladakh and Kashmir, and Ladakh really wishes to become a union region. The only people who protest are those who live in Kashmir, where Muslims make up the bulk of the population; as a result, the article cannot be scrapped save for the areas of Ladakh and Jammu, omitting the valley.

CONCLUSION

The appeal for special status by Jammu and Kashmir has major historical importance. Implementing the status in line with the signed treaty becomes an important step in maintaining peace and tranquility in the disputed territory of Jammu and Kashmir. On the other hand, putting a fair focus on this issue requires taking into account that the provision was only intended to be in place for a brief time and that, as a result, the moment is ripe to abrogate the article.

The state of Jammu and Kashmir has become a highly contested area as a result of recent tensions between India and Pakistan, thus the government must exercise extra care and caution while dealing with it or enacting any laws or amendments addressing it. Thus, it may be concluded that the Indian state will ultimately benefit if the rules pertaining to Jammu and Kashmir are adhered to meticulously.


CITATIONS

  1. Economic and Political Weekly. 2022. Article 370: A Short History of Kashmir’s Accession to India. [online], [8 September 2022]. https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india .
  2. Wani, Aijaz. (2014). Article 370: a constitutional history of Jammu and Kashmir. Race & Class. 56. 93-95. 10.1177/0306396814542921.
  3. BYJUS. 2022. Article 370 – A Constitutional History of J&K. [online], [8 September 2022] https://byjus.com/free-ias-prep/article-370/ .
  4. Standard, B., 2022. What is Article 370, Article 370 News, Article 370 Provisions, History. [online] Business Standard. [Accessed 8 September 2022]. https://www.business-standard.com/about/what-is-article-370 .
  5. iPleaders. 2022. Article 370 of Indian Constitution. [online], [Accessed 8 September 2022]. https://blog.ipleaders.in/article-370-jammu-and-kashmir/ .
  6. Editor, S., 2022. Important Features of Article 370 of Indian Constitution | QuickGS. [online], [Accessed 8 September 2022], https://quickgs.com/important-features-of-article-370-of-indian-constitution/.
  7. Verfassungsblog. 2022. Article 370: Is it a Basic Feature of the Indian Constitution?. [online] [Accessed 8 September 2022], https://verfassungsblog.de/article-370-is-it-a-basic-feature-of-the-indian-constitution/ .
  8. Kumari Vijaylakshmi Jha v Union of India W.P. (C) 9300\2015.
  9. Prem Nath Kaul vs The State Of Jammu & Kashmir 1959 AIR 749, 1959 SCR Supl. (2) 270
  10. Sampat Prakash vs State Of Jammu & Kashmir & Anr 1970 AIR 1118, 1970 SCR (2) 365
  11. The Indian Express. 2022. Explained: Wheel moves on J&K-Article 370 petitions before SC, what’s under challenge in these cases? [online], [Accessed 8 September 2022], https://indianexpress.com/article/explained/jammu-and-kashmir-article-370-supreme-court-petitions-7891313/.
  12. Paper, T., Editor, R., Page, O., 2022, B., Quotes, S., Sports, O., gardens, H. and case, P., 2022. Pleas challenging abrogation of Article 370 in J&K: CJI says he will discuss with other judges and consider listing case. [online] Thehindu.com, [Accessed 8 September 2022], https://www.thehindu.com/news/national/pleas-challenging-abrogation-of-article-370-in-jk-cji-says-he-will-discuss-with-other-judges-and-consider-listing-case/article65353046.ece .
  13. News, I., 2022. Supreme Court agrees to list pleas against abrogation of Article 370 after summer vacation | India News – Times of India. [online] The Times of India, [Accessed 8 September 2022], https://timesofindia.indiatimes.com/india/supreme-court-agrees-to-list-pleas-against-abrogation-of-article-370-after-summer-vacation/articleshow/91067259.cms .

This article is written by INIAN R, 4th Year, BA LLB (Hons.) student from, School of Law, Christ (Deemed to be) University, Bangalore.

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