An Analysis of the Causes and the Procedure of the Abrogation of Article 370!

Analysis | Procedure | Abrogation | Article 370 | 07th July 2022 | Virtual Wire

 

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“On 5th August 2019, a Historic Decision was made by the Indian Parliament, Honorable Home Minister Shri Amit Shah Ji announced the revocation of article 370 from Jammu and Kashmir.

Now to critically analyze this monumental decision we need some backup study as to why actually article 370 was necessary, and what the conditions forced the Government of that time to put Kashmir under a special lens.


The Early Days

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Article 370 of the Indian constitution was a brochure that was given by the Jawaharlal Nehru government to Kashmir. It conferred power on Kashmir to have a separate constitution, a state flag and autonomy over the internal administration of the state. The constituent assembly of Jammu and Kashmir had the power to recommend the articles of the Indian constitution that allowed the Central Government to apply new regulations to the state and to abrogate article 370 as well. The 1954 presidential order issued the guidelines which applied to the state since the constituent assembly of 1954 dissolved without abrogating Article 370 which was deemed to be a part of the Indian Constitution. There was another article that defined the set of laws for the state i.e Article 35A giving the citizens of Kashmir the right to be judged under a separate set of laws in terms of property ownership, and fundamental rights compared to the citizens of other Indian states. As stated early in the revoked law Article 370 was a temporary Provision but to be precise it did not give the Indian Government the power to use the Instrument of Accession rather the Instrument of Consultation was used regarding Kashmir problems.


Now, this was a sort of problem from the Indian point of view Kashmir was accessed only on three matters as other princely states of India i.e defence, foreign affairs, and communications but all the other internal aspects were under the control of the respective state. In the constituent assembly meeting of 1949, the representatives of the rest of the princely states were asked to accept the newly forming Indian constitution from 1950 onwards to which Saurashtra union, Travancore-cochin, and Mysore showed positive affirmation, but Kashmir took a u-turn on this proposal asked the interim cabinet to permit to form their constitution, the catch was they would be taking protection from the Indian states in terms of Military and communications but there would be no interference from the Government front on the Internal matters as a result of which to keep the uprising from happening in Kashmir Article 370 was introduced in the parliament as a temporary measure but this where the fault happened. The Kashmir Constituent Assembly got dissolved in 1957 with a single leader not speaking about the abrogation of Article 370, as a result of which this article sought its permanency in the Indian Constitution.

Maharaja Sir Hari Singh GCSI GCIE GCVO was the last ruling Maharaja of the princely state of Jammu and Kashmir. Hari Singh was the only surviving son of Raja Amar Singh, the brother of Maharaja Pratap Singh, the brother of Maharaja Pratap Singh, the then Maharaja of Jammu and Kashmir. Since the Maharaja had no issue, Hari Singh was heir to the throne of Jammu Kashmir. In 1903, Hari Singh served as a page of Honor to Lord Curzon at the grand Delhi Durbar. At the age of 13, he was sent to Mayo College in Ajmer. A year later his father died and the British took a keen interest in his education, appointing Major H.K brar as his guardian. He was appointed the commander in chief of the State Forces in 1915 by Maharaja Pratap Singh.

The Original Text from the Constitution, This is the Original Text from the Indian Constitution: Temporary provisions concerning the State of Jammu and Kashmir.


(1) Notwithstanding anything contained in this Constitution,


(a) the provisions of article 238 shall not apply now concerning the state of Jammu and Kashmir;


(b) the power of Parliament to make laws for the said state shall be limited to


(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters concerning which the Dominion Legislature may make laws for that State; and


(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.


Explanation [1950 wording]: For this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers during the time being in office under the Maharaja's Proclamation dated the fifth day of March 1948;


Explanation [1952 wording]: For this article, the Government of the State means the person for the time being recognized 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.


(c) the provisions of article 1 and this article shall apply concerning that State;


(d) such of the other provisions of this Constitution shall apply concerning that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:


Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.


(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly to frame the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.


(3) 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:


Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.


The facilities that the 1950 Presidential order provided to the Kashmiris

Article 370 Came into effect in 1954 with the 1954 presidential order the foundation stone of article 370 was laid way back in 1950.


Permanent Residence

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Article 370 grants special status to the Jammu and Kashmir State in terms of its autonomy to formulate the Property rights of its citizens. Further, this article has incorporated the right to set laws on permanent Residence such as education and Govt. jobs a facility which was not available for other states. However, Article 35A has been said to be a boulder that prohibits the native Kashmiris from challenging the state laws, on the frugal grounds that this uprising might curb the rights granted to them by the Central Government.


Incidences Triggering Abrogation

1. Discrepancies in the Residence certificate distribution.

Permanent Residence Certificate was issued to the Kashmir residents, a special point to be mentioned here is that these certificates were gender-specific, i.e the certificates issued for females were valid till marriage, while no such restriction was there for certificates issued for males. This had caused uprisings among the women of the high court on account of the state laws putting a restriction on jobs for the women who were married to men outside Kashmir in 1979, and not only various other women rights activists like Sunita Sharma, Anjali Khosla, Abha Jain, Kamla Devi, Reena Gupta sued the government on account of sex-based discrimination.


2. The Daughters Bill

This is basically a cut-out of Sushila Sawhney’s case where she had challenged Article 35A of the Jammu and Kashmir Constitution which had introduced the Daughter’s bill Sushilaevicting the women of Kashmir of their basic rights if they marry a person outside the Kashmiri Lineage. In 2004 it was again introduced in the parliament for a more forceful amendment. Sawhney has been a forceful force for women’s rights in Kashmir.


In 2004 the Permanent Residence Disqualification Bill was introduced in Kashmir Assembly. This law aimed at cancelling all the rights of citizens having daughters who were married to people outside Kashmir. In our opinion, this is nothing less than the medieval architecture of society said Sehla Ashai a human rights activist.


3. The Amarnath Incident.


On 26th May 2008 an agreement was signed between the Government of India and the Government of Kashmir for transferring 100 acres (0.40 Km2 ) of forest to Shri Amarnathji Shrine Board to set up shelters for the pilgrims. This incited separatist agitations in Kashmir from the separatist groups claiming that it was an attempt to take off article 370 and deprive the native Kashmiris of their widespread rights in the coming near future. These agitations led to the Govt. of Kashmir to revert the decision leading various Hindu Samaj activists to follow widespread agitation. It was included in the Bharatiya Janata Party Election Manifesto that this article will be abrogated whenever they come to power in the Central Government.


The Final action


1. The Initial Obstacles


In October 2015 the High court of Jammu and Kashmir ruled out any possibility of getting article 370 abrogated repealed or even amended. The court’s explanation was that clause 3 of the Article conferred power to the State’s Constituent Assembly to recommend to the president on the matter of repeal of the article since the assembly was dissolved without any such proposal article 370 had become a permanent part of the Indian constitution. In 2019 again the abrogation proposal was added to the BJP manifesto.


2. Ruling out the Obstacles


On 5th August Home Minister Amit Shah Ji issued the Constitution Order 2019 superseding the presidential order of 1954. The order stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir whereas 1954 order stated that only some articles of the Indian constitution applied to the state, the new law removed all such restrictions which meant that the Constitution of the Jammu and Kashmir stood abrogated. After the issuance of the order, Mr. Shah moved a resolution where he recommended the president that issue an order which stated the Article 370 stood inoperative. The New Kashmir bill was passed in Rajya Sabha named as Jammu and Kashmir reorganization bill 2019 with 125 votes for the bill and 67 votes against the bill.


Amit Anil Chandra Shah is an Indian politician currently serving as the Minister of Home AffairsFirst and the first Minister of Co-operation of India. He has rich experience of serving as the president of the Bharatiya Janata Party from 2014 to 2020. He has also served as the chairman of the National Demographic Alliance since 2014. He was elected to the lower house of Parliament in 2019 in 2019 after winning his seat from Gandhinagar, previously he had been elected as a member of Rajya Sabha in 2017 from Gujarat.


P.s – In this short article we are only analyzing the cause of the abrogation and how the bill was passed in the parliament house the after-effects of the article shall be analyzed in a separate issue of the article if permitted to do so.

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