ABROGATION OF ARTICLE 370 AND ITS AFTER- EFFECTS

Author: Umang Dudeja

IMS Unison Univ, Dehradun


INTRODUCTION

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.[1]

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[2]. 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.[3]

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.


LEGISLATIVE POWERS

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.[4] No investor was ready to set up business, hotels, private educational institutions or private hospitals because they could not buy land or property. Today, there are no major national or international chains that have established hotels in a tourism-centric state. This prevents enrichment, resource generation and job creation[5], he said.


RIGHT TO PROTECT ITS STATE BORDERS

J&K's special status so far protected it from the applicability of Article 3, which provides for the redrawing of national boundaries or the creation of a new state. The bifurcation of the state of Jammu and Kashmir into two Union Territories (UTs) Ladakh and J&K-is therefore subject to the repeal of Article 370.[6] "Given the prevailing internal security situation fuelled by cross-border terrorism in the present state of Jammu and Kashmir, a separate Union Territory for Jammu and Kashmir has been set up. The Union Territory of Jammu and Kashmir will be with the legislature," Amit Shah said in Rajya Sabha. He added that this was a long-standing demand of the people of Ladakh.

Naturally, some Kashmiri’s celebrate the decision of the government. The Article, also known as the Law on Permanent Residents, had till now prohibited any property rights of women (owned as a State) if she was married to someone outside of the State. The provision was also applicable to the children of women who have no rights of succession over the property. The revocation of Article 370 ends old discrimination against J&K women to marry external persons.


AFTER EFFECTS

The abrogation of Article 370 revoked Jammu and Kashmir's special status. The government did so by declaring that the far-reaching political change in the restive state would repair a historic blunder. The step will bring several changes in India's political culture. Jammu and Kashmir will be bifurcated into two distinct territories where Ladakh's Union territory will be created without any legislative authority.

Ever since the revocation of Article 370 and Article 35A in Jammu and Kashmir, there has been a huge hue and cry. As far as the separatist leaders are concerned, the name says it all! Kashmir is an integral part of India not just in speeches but officially on paper leaves no place for a “separate independent Kashmir”. What will more than two dozen separatist parties and their leaders do when their only core issue is taken away from them? Would they continue to receive funds to carry on the agenda of separatism? How are they going to survive?

Lok Sabha members criticised the move and the reforms it put into effect. Opposition parties expressed questions about the situation when the reforms took off. Members of Congress, DMK, National Conference and RSP raised their voices against the Act and demanded a clarification of their acts from the Government. While Arvind Kejriwal and many others were hoping for the move of Modi's government, 'this will bring peace,' MDMK leader Vaiko in Rajya Sabha opposed the Bill calling it 'a day of shame, shame, shame,' and a 'democracy murder.' Many of the nation's political institutions and organisations opposed the way the governing party treated the situation.

Pakistani leaders posed a greater opposition to the Act, condemning the Indian government on their conduct.[7] On the financial front, Pakistan's dollar bonds dropped after the Indian government revoked Article 370.

The matter began to pick momentum after Section 144 in the region was imposed by the government[8], ahead of the announcement, which prevented people from holding any kind of public meetings or gatherings and also ensured that all educational institutions remained closed. Mobile internet services were also suspended by the government in the valley of Kashmir.


ECONOMY AND EDUCATION

J&K's main economic sectors have seen a sharp decline following the revocation of Article 370. In the last five months alone, due to the communications blockade, curfews and militant attacks, Kashmir’s economy has lost INR 178.78 billion and more than 90,000 jobs in the handicraft, tourism and information technology sectors. Horticulture is in distress, tourism is in shambles, and students are suffering from the ongoing internet blockade[9]. This is the first time that rural Kashmir has experienced such an economic downturn in the past 70 years. Kashmir’s apple industry, worth INR 80 billion, which contributes eight per cent of J&K’s GDP, has been adversely affected. Threats from extremists, combined with a drastic clampdown by the government delayed the harvest for more than a month, handing the industry a crushing blow during the peak harvest season. The harm had been done by the time the government intervened and NAFED procured and commercialized apple produce. Even before this action, hundreds of farmers were forced either to sell their produce at rates that were throwaway or just watch their crops rot.

The prolonged restriction of the internet has seriously impacted university and college students. For example, college students and research scholars could not fill out the online forms for competitive exams, scholarship grants and research papers. Most Universities have been shut down indefinitely. Internet access to university libraries has been interrupted; which has raised the stress levels. The students saw it as New Delhi’s conscious strategy to hold them out of eligibility for national and international competitions[10]. They also complained that they had to wait outside district headquarters for long hours, the only government offices where there is public access to internet services. In addition to wasting precious time at these offices, each student has had to shell out INR 100 to 200 per online request.


CONCLUSION

Conditions in Indian Administered Kashmir would never have been bleak if human rights weren’t abused, people would have migrated like Rohingyas or East Pakistanis (today's Bangladesh) or Kashmiri Hindus. Individuals were making up the issues favourable to their interests. So, on one hand, it is good that we are not dividing India into parts upon legislature or rules and on the other hand, it has created problems for the people from that region, even after various steps have been taken by the government, some people are still facing issues regarding that. It is expected that the government will take immediate and effective measures to prevent people from facing these issues and lead their life with happiness and in a way they are supposed to live as a human being.

[1] https://www.bbc.com/news/world-asia-india-40897522 [2] https://taxguru.in/goods-and-service-tax/implication-amendment-article-370-income-tax-act-gst-act.html [3] https://news.cleartax.in/implications-of-scrapping-article-370-on-gst-from-jammu-and-kashmir/ [4] https://www.dqindia.com/article-370-revoked-means-jobs-employment/ [5] https://www.businesstoday.in/current/economy-politics/what-rights-will-kashmiris-lose-with-the-removal-of-article-370-article-35a/story/370716.html [6] https://www.thehindu.com/news/national/jk-loses-its-special-status-divided-into-two-uts/article28827159.ece [7] https://mumbaimirror.indiatimes.com/news/india/jammu-and-kashmir-live-updates-omar-abdullah-mehbooba-mufti-house-arrest-modi-government-section-144/articleshow/70529165.cms [8] https://www.news18.com/news/india/article-370-live-updates-jammu-and-kashmir-supreme-court-section-144-2452931.html [9] https://pib.gov.in/newsite/PrintRelease.aspx?relid=198922#:~:text=Union%20Minister%20of%20State%20for,last%2070%20years%20as%20the [10] https://www.hindustantimes.com/india-news/how-j-k-school-kids-are-coping-with-curbs/story-pspbVxaqgX2EpCruXru3yM.html

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