Topic : Article 370 Abrogated
Topic in Syllabus: General Studies Paper 2: Indian Polity
On 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019.
The order effectively abrogates the special status accorded to Jammu and Kashmir under the provision of Article 370 – whereby provisions of the Constitution which were applicable to other states were not applicable to Jammu and Kashmir (J&K).
According to the Order:
Provisions of the Indian Constitution are now applicable in the State.
A separate Bill – the Jammu and Kashmir Reorganisation Bill 2019 – was introduced to bifurcate the State into two separate union territories of Jammu and Kashmir (with legislature), and Ladakh (without legislature).
Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was also introduced to extend the reservation for Economically Weaker Sections (EWS) in educational institutions and government jobs in Jammu and Kashmir.
A brief timeline:
- August 1947: Partition of the Indian subcontinent along religious lines lead to the formation of India
- and Pakistan.
- October 1947 – The Maharaja of Kashmir signed a treaty of accession with India after attacks by a Pakistani tribal army. Under the Instrument of Accession, a temporary special status was granted to the State under article 370 of the Indian Constitution.
- 1947-48: War broke out between India and Pakistan over the region.
- January 1948: India referred the dispute to the United Nations.
- August 1948: UN directed Pakistan to remove its troops, after which India was also to withdraw the bulk of its forces. Once this happened, a “free and fair” plebiscite was to be held to allow the Kashmiri people to decide their future. But a plebiscite could not be held, partly because Pakistan would not withdraw its forces from Pakistan-held Kashmir, and partly because Indo-Pak relations got enmeshed in the Cold War.
- January 1, 1949: A ceasefire was agreed, with 65% of the territory under Indian control and the remainder with Pakistan. The ceasefire was intended to be temporary but the Line of Control remains the de facto border between the two countries.
- 1956: The Constituent Assembly of Jammu and Kashmir ratified the accession of the state to India.
- 1965-66 – A brief war between Indian and Pakistan over Kashmir ends in a ceasefire and signing of the Tashkent agreement.
- 1971-72 – Another Indo-Pakistani war ended in defeat for Pakistan and the formation of the independent nation of Bangladesh (formerly known as East Pakistan) which lead to the 1972 Simla Agreement. This turned the Kashmir ceasefire line into the Line of Control, and both sides pledged to settle their differences through negotiations.
- Kashmir gave impetus to a pro-independence insurgency. India accused Pakistan of fomenting the insurgency by dispatching ghters across the Line of Control, which Pakistan denied.
- 1990 – India imposed Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir following escalation of insurgency.
- 1990s – Violence intensified in Kashmir. Islamic militants carried out ethnic cleansing in the Kashmir Valley, terrorizing non-Muslims, mainly Kashmiri pundits, causing large numbers of people to flee, mainly to Jammu. The Indian military responded with repression to the terrorism, foreign infiltration, and the domestic insurgency, which are now all mixed up. There are allegations of serious human rights abuses on all sides.
Article 370 never implemented properly :
Indian federalism is an Asymmetric Federalism which is accommodative of the diverse interests and is part of the project of national consolidation. As part of this project of Asymmetric Federalism and the respect for the identity of Kashmiriyat Article 370 was included in Constitution which provides a separate Constitution for Jammu and Kashmir. The article had been included in the Constitution of India as part of temporary provision to be revoked when Kashmir is well integrated with India.
But this Constitutional intention was never properly translated into practice as the local institutions never developed properly. This trend has been continuing even today with the recent example being the dissolution of State Legislative Assembly by the Governor without conducting a floor test despite demands made by certain parties to prove their confidence. This was completely against the procedural propriety prescribed by the Constitution.
Article 370 was Temporary:
The Article was introduced to accommodate the apprehensions of Maharaja Hari Singh who would not have acceded to India without certain concessions.
Territorial integrity was of paramount importance to India post-independence, thus, such a special provision was inducted in the constitution.
The provision, however, is part of the “Temporary, Transitional and Special Provisions” of our constitution.
Moreover, Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
Another interpretation was that accession was temporary until a plebiscite.
Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
Impacts of Revoking:
Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India.
It has been described as a tunnel through which the Constitution is applied to J&K.
India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status.
By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments.
However, abrogating the article altogether may threaten the peace in the state which is already a hotspot of conflicts and militancy.
It will completely change the relationship between the state and the rest of India.
It will also clear the path for abrogating Article 35A which would allow Indian citizens to purchase land and settle permanently in J&K.
Thus, the move is bound to have a significant impact on the demography, culture, and politics of J&K.
Discuss what effect recent scrapping of article 370 has on the security front in Kashmir