Author: Umang Dudeja
IMS Unison Univ, Dehradun
The Constitution (Application to Jammu and Kashmir) Order, 2019 was issued in August, 2019 by President Ram Nath Kovind. It called upon the provisions of the Indian Constitution to be applicable "at once" in the State.
The BJP Government dropped the large Kashmir bomb, amid tensions, uncertainty, and huge anticipation of a major push in the valley. In the House of Representatives, the Minister of Home Affairs, Mr Amit Shah, announced the amendment of Article 370 of the Constitution that granted Jammu and Kashmir a special status. The Minister of Home Affairs added that the Jammu and Kashmir territories would be independent Union territory and that Ladakh would be divided into Union Territory (UT) without the Assembly. As a UT with assembly, Jammu and Kashmir will have an elected Lieutenant Governor (LG) status as part of the Statehood while Ladakh will be directly ruled by the Union government via LG. Article 370 was a "temporary clause" which promised to give Jammu and Kashmir autonomy and restricted the Parliament's powers to make laws for the State. J&K wasn’t subjected to any constitutional requirements similar to other Indian states. Article 370 was classified as a temporary provision concerning the State of Jammu and Kashmir By Part XXI of the Constitution titled “Temporary, Transitional and Special Provisions”.
WHAT ARTICLE 370 MEANS ?
According to this Article, the Centre was required to have the state government 's consent for the application of laws, except in defence. It meant that state residents used to live according to different rules, in contrast to other Indians, including laws relating to citizenship, land ownership and basic rights. As a result, Indians from other states weren’t allowed in Jammu & Kashmir to purchase land or properties. As per Article 370, it had no authority under Article 360 to declare a financial emergency. Only in case of war or external violence, an emergency could have been declared in the state.
The provisions of Article 370 which came into line with Part XXI of the Constitution as "Temporary, Transitional and Special Provisions” gave Jammu and Kashmir special independent status. Jammu and Kashmir wasn’t governed by constitutional requirements similar to the other Indian States.Sheik Abdullah, the Prime Minister of Jammu and Kashmir appointed by Maharaja Hari Singh and Jawaharlal Nehru, drafted the law in 1947. Abdullah had argued that Article 370 should not be considered as a temporary provision rather; he wanted the state to have 'iron-clad autonomy.' However, his wish was not granted by the Centre.
KASHMIR GOT ARTICLE 370
The origin of Kashmir can be traced back to the 1880s. After the East India Company left in 1885, British rule strengthened in India. Thereafter, the British trader-rulers 'sold' Jammu and Kashmir's dominion for 75 lakh to Dogra's king Gulab Singh. The King of Dogra ruled Jammu, Kashmir, Gilgit-Baltistan and Ladakh regions. The scheme lasted until 1947 when the British divided the Indian subcontinent into two countries i.e. India and Pakistan. Hari Singh tracked his way without accession to either India or Pakistan. India did not intervene until Hari Singh signed the Indian Instrument for Accession and asked New Delhi for assistance. In compliance with a 1927 law that denied the outside parties the right to own property of the state, Hari Singh sought certain privileges for his population. In Jammu and Kashmir, the law limited the right to property in heritage terms.
Subject to future final settlement, Jawaharlal Nehru government agreed to Hari Singh’s condition. The issue was put before India's Constituent Assembly and given the task to shape the Indian Constitution. Article 370 was incorporated into the 21st part of the Constitution after a lot of discussions, and was declared that it was 'Temporary, Transitional and Special Provision.'
The special status granted by the Presidential Order of 1954 to Jammu and Kashmir was provided for in Article 370. Through the Presidential Order in 2019, the Narendra Modi government revoked Jammu and Kashmir's special status.
BARRIER BETWEEN PEOPLE OF J&K AND REST OF INDIA
Article 370, which promoted the psychology of separatism, has created emotional and psychological barriers between the people of Kashmir and the rest of India. Over the years, this barrier has been used by the separatist lobby in the state to build alienation. Many political stalwarts, comprising the Constituent Assembly of India, had visualised this possibility. After a discussion with one of its distinguished members of the Constituent Assembly of India namely Hasrat Mohani, he said that the granting of special status would allow Kashmir to become independent later, it was passed.
The vested interests in Kashmir, be it politicians, bureaucrats, businessmen, the judicial officials, etc., have misused Article 370 by exploiting the state's poor and downtrodden people for their nefarious purposes. The rich have consistently used Article 370 to ensure that there is no financial law in the state that would make them accountable for their state treasury loot. These include provisions of Gift Tax, The Urban Land Ceiling Act, Wealth Tax, and so on.
The rich have thus become richer, and their legitimate share of the economic pie has been denied to the common people. Article 370 also contributed to the establishment of power elites and local sultans who exercised enormous powers to smash the genuine public welfare requests of ordinary people. Since no outsider could have settled in the government and possessed any property, the politically well-connected people gained huge profits. The regulations, the prices for buying and selling were determined by those influential individuals, and any competition from outside was excluded altogether.
Land resources were cornered by the rich and wealthy, which has led to the state losing tremendous amounts of revenue. These vested interests gained a great deal of financial support which was used to build separatist mindsets and secessionist lobbies to blackmail.
RIGHTS LOST BY KASHMIRI’S The intention to transform the demographics of the second Muslim majority state in India is clear and sinister, and is to disempower Muslims to the extent that they become second class citizens in their own country. The abrogation has been described as "another division along communal lines." This is, however, a feeling echoed by many people across the state-the withdrawal of Article 370, and by extension Article 35A, has seen to open up floodgates to the effect that Hindus can migrate to the State from other parts of India and therefore, engineer a demographic transformation.
The Assembly of Jammu and Kashmir is no longer capable of clearing any important bills in the State. The balance of power in favour of the Union Government has shifted. Importantly, the Presidential Order stated that the State Governor shall carry out the power of the elected government in the absence of an elected government.
PREFERENTIAL EMPLOYMENT OPPORTUNITIES
Under Article 35A, no outsider could have secured a government job. State companies were even forced to employ local people only. The revocation of this rule aimed to make the field of play even. BJP stalwart and former finance minister Arun Jaitley claimed in a March blog post that Article 35A crippled J&K’s ability-despite, not sufficient-to raise funds and refused its population to boost economic activity, employment and the economy. No investor was ready to set up business, hotels, private educa