Abrogation of Article 370: A Radical Step
Article 370 gave Jammu and Kashmir, along with Article 35A, special rights and privileges regarding employment with the State Government, acquisition of property within the State, settling in State and right to scholarships and other forms of aid that State Government provides.
Except for defense, foreign affairs, communication and other matters specified in the accession instrument, the Indian Parliament requires the concurrence of the State Government to apply other laws. Hence, the residents were living under separate laws relating to separate citizenship, ownership of property within the State, Fundamental Rights, those compared to other citizens.
Meaning of Article 370
Article 370 of the Indian Constitution was a ‘temporary provision’ which granted special autonomous status to the State of Jammu and Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special Provisions,” the State of Jammu and Kashmir has been accorded special status under Article 370. ‘All the provisions of the Constitution, which are applicable to other states, may not be applicable to Jammu and Kashmir,’ was the earlier provision.
In addition to Article 370, Article 35A of the Indian Constitution empowered the Jammu and Kashmir State Legislature to define the “permanent status” of the State and provided special rights and privileges to those permanent residents.
History of the Article/Why it was inserted?
While the formulation of the Constitution for the whole of India, all Princely States were invited to send representatives to India’s Constituent Assembly. They were encouraged to set up such assemblies for their own States also. The rulers and Chief Ministers of all the States agreed that separate constitutions of all the States were not required to be formed and they accepted the Indian Constitution as their own. All the States, therefore, have become equivalent to each other than regular Indian Provinces.
In the case of State of Jammu and Kashmir, the representatives of the State Constituent Assembly made a request that only those provisions of the Constitution of India should be applied to the State, that corresponded to the original Accession Instrument. The State Constituent Assembly, whenever it will be formed, would consider other matters. The Government of India agreed to these demands before consulting with other States. Consequently, Article 370 was inserted into the Constitution of India, which provided that the other provisions applicable to the State of Jammu and Kashmir, would be applied only with the concurrence of the State Constituent Assembly. This was a ‘temporary provision’ intended to be in force till the formulation and adoption of the State’s Constitution.
It was decided by the Constituent Assembly of the state of Jammu and Kashmir that, “the State of Jammu and Kashmir is and shall be an integral part of the Union of India”.
On 26th November 1956, the Constitution was adopted and came into force on 26th January 1957, the State Constituent Assembly of Jammu and Kashmir dissolved itself and no recommendation, either for abrogation or for amendment of Article 370 was made.
Rationale Behind Abrogation
The rationale offered for seeking abrogation of Article 370 of the Constitution of India is to remove the autonomous status of the State of Jammu and Kashmir and to allow its full integration to the Indian Union.
“Since Article 370 was a temporary provision, it would not be unconstitutional to repeal it: It was not an essential feature of the Constitution and not a part of the ‘Basic Structure’ of the Indian Constitution and hence, it is not beyond amendment,” as stated by Soli Sorabjee.
Whether Article 370 Can Be Abrogated?
Let us first consider whether Article 370 can be abrogated or not. The Parliament or more precisely, the Legislature, can amend the Constitution for the abrogation of Article 370. But, it is not going to be an easy job.
Article 370 itself mandates a recommendation of State Constituent Assembly dispersed after framing the Constitution of the State of Jammu and Kashmir, but did not make any such recommendation. Hence, if the State Legislature is not present for working, then the Parliament, the President and the Governor may act as State Legislature.
Whether it Violates Federalism?
There are many questions, whether such a crucial change can be carried out when Governor is in place and whether it is violating the spirit of federalism. The answer to these is, elections will be held. One must not assume and infer that the Centre might now use these similar provisions in other States.
The situation in the State of Jammu and Kashmir cannot be compared with the situation in other States. Everything depends on the facts and circumstances prevailing in that particular State. Jammu and Kashmir cannot become a precedent binding on all States at all times.
The Legal Hurdles the Government Could Face
The decision of abrogation of Article 370 has evoked sharp responses, with several questions being raised, about the legality of the decision. The Government might face the following ‘Legal Challenges’ over the abrogation of Article 370.
1. Excessive Delegation
An Assembly is elected as a representative body of people, and the Governor is representative of the Centre. Can the opinion and recommendation of an elected body be replaced by the recommendation of the Governor for such abrogation?
2. Legal Precedent
The judgment of the Supreme Court in 2016 in SBI vs Santosh Gupta by Justice Nariman made it clear that under sub-clause (3) of Article 370, this Article shall cease to be operative from such date as President may declare by public notification. And this cannot be done unless State Constituent Assembly recommends doing so.
This makes clear that Article 370 is not temporary. It is permanent unless Constituent Assembly so recommends.
As in the present case, the Supreme Court has not given any adverse review for the recommendation for the abrogation of Article 370 in absence of the State Constituent Assembly; a similar administrative precedent can be set in future circumstances by the Parliament, or the Legislature.
4. Basic Structure Doctrine
Through the various judgments, the Supreme Court of India has declared that ‘the basic structure of the Constitution cannot be changed or amended’. The question raised, whether Article 370 is a part of basic structure and hence, can it be amended?
5. UNSC Resolution
Resolution number 47 of UNSC allowed Kashmiris, right to self-determination through a plebiscite. If Article 370 is abrogated and such autonomy is eliminated, then it will be a violation of the Resolution by UNSC.
6. Shimla Agreement-
India and Pakistan signed a Treaty in 1972, after the incorporation of Article 370 in the Constitution. The agreement called for the ‘status quo’ to be maintained in respect of the Kashmir issue. Now, if Article 370 is abrogated, there shall be a violation of the Treaty.
Impacts of Abrogation of Article 370
There are many impacts of the abrogation of Article 370 on Jammu and Kashmir and the whole of India. Some of them are positive, rest are negative.
A. Positive Impacts
1. Splitting of the State
The State of Jammu and Kashmir has to be split into two Union Territories, i.e. Jammu and Kashmir will have a State Legislature Assembly and Ladakh would be a Union Territory without Legislative Assembly. Now, all provisions of Article 370 are null and void, ‘except clause (1) of Article 370,’ as it says that ‘Jammu and Kashmir is an integral part of India’.
2. Reservation Policy
After abrogation, the reservation policy will change in Jammu and Kashmir. Now, people of all Scheduled Castes, Scheduled Tribes or Minorities will get a reservation in Government jobs and educational policies.
3. Single Citizenship and One Flag
Now, every resident of the State of Jammu and Kashmir would enjoy just single citizenship as in all other States. Similarly, now the State of Jammu and Kashmir would have just one National Flag, i.e. the ‘Tri-colour of India’.
4. Laws Applicable
The laws like Right to Information, which were not yet accepted by the State of Jammu and Kashmir, would be applicable in the territories of Jammu and Kashmir and Ladakh.
5. Land Acquisition
All citizens of India would be eligible to purchase land in the State of Jammu and Kashmir, as it is not a separate State from now onwards.
6. Tenure and Reformation of Legislative Assembly
The total of Legislative Assembly seats in the State of Jammu and Kashmir were 111 (46 for Kashmir, 37 for Jammu, 4 for Ladakh and 24 for Pakistan Occupied Kashmir). Now, the total Assembly seats would be 83 (4 for Ladakh and 24 for Pakistan Occupied Kashmir would be slashed). Similarly, the tenure of the Assembly is reduced to 5 years from the earlier 6 years.
The major problem in front of India is ‘terrorism’. Terror attacks would be reduced and peace would be established in the territories of the State of Jammu and Kashmir and Ladakh.
8. Growth and Development
And on the other hand, both territories would enjoy the growth and development of society and the nation along with the rest of India.
B. Negative Impacts
1. Accession to India in Jeopardy
Abrogating provisions of Article 370 would cause India in jeopardy because the nature of the accession of Jammu and Kashmir to India is totally different from the merger of all other small and even big States.
2. Helplessness in Communication
Since the abrogation of Article 370, Kashmir Valley has experienced continuous media and communication blackouts. The Fundamental Right to Liberty of the citizens residing in the state of Jammu and Kashmir is violated, as they were restricted to communicate with their loved ones.
3. Strain in Relations of India with Pakistan
Since the Independence of Pakistan, the relations of India with Pakistan are at stake. The abrogation now can strain their relations, which can lead to a war-like situation.
4. Chaos in Valley
By abrogating Article 370, there is a great chance of political chaos in the Kashmir Valley. Also, the chaos can be caused as emotions of people got hurt due to the curfew was imposed for the security of the Valley.
5.Threat to Kashmiri Identity
The threat to Kashmiri Identity is that it may deploy the political ambitions of the leaders, and it can cause great damage to Kashmiri culture. As no culture can survive without contact from outside and the opportunity to cross-fertilize.
6. Unlimited Authority to Government
The Court laid down no limit whatever regards time or content. “We must give the widest effect to word ‘modification’ in Article 370(1)”. It can give a carte blanche to the Government to extend such provisions to Kashmir.
To conclude, the need of this hour is to devise a logistic interpretation of the Article, keeping in mind the real intention of framers behind it. By making amendment provision, they never intended to bestow operation of the Constitution with absolute rigidity but provided the facility for flexibility to keep pace with the ever-changing needs of society and to serve justice.
Amendment of Article 370, up to the present, was a myth; but it is clear that it can be dealt with using a logistic approach and can be diplomatically modified to reality.