Article 370 of the Indian Constitution is a very famous and controversial topic of discussion. Some people said that the abrogation of this article was right whereas some people are against it. So, Today in this article we will discuss all the perspectives of Article 370.
First of all we have to know about Art.370? Before 2019, It was a provision in the constitution of India which granted special status to the state of Jammu and Kashmir (J&K). It was Initially inserted into the Constitution because in those circumstances, it was necessary for J&K to become a part of India. Until 2019, Jammu & Kashmir had its own constitution, a separate flag, and different sets of laws in that particular area like outsiders could not buy the property.
Historical Context of Article 370
This article was composed in the Constitution as a temporary provision in order to give the special status and make the state as a part of India. At that time it was stated that if there will be any changes made in future, then the consent of the jammu and kashmir’s people is mandatory.
During British colonial rule, this region of Jammu and Kashmir was one of the princely states and at that time had an option to either join India or Pakistan or want to remain an independent state.
After the partition in 1947, the last ruler of J&K decided to stay as an independent state. But later on October 26th, 1947 under some conditions, Maharaja Hari Singh acceded to India by signing the Instrument of Accession.
The term accession includes it was agreed that J&K would retain considerable autonomy, particularly in matters other than defense, foreign affairs, finance, and communications. Constitution was amended to include Article 370 in order to codify this system. From the beginning, Article 370 was considered as a temporary provision, but its applicability and interpretation changed over the time by the Apex court of India.
Article 35A and Its Link to Article 370
Article 35A was an extension of Article 370 which was introduced by a Presidential Order in 1954. Basically, it gave the power to the J&K legislature in order to define "permanent residents" of the state.
Under this article, states (jammu and kashmir) can also grant special rights and privileges to its citizens. It includes the right to own land, right to marriage, right to government employment, and other benefits.
This provision gives more strength to the state's autonomy but also raises some controversies for example - ownership of property for the non-resident is impossible under this provision and access to certain rights also comes to an end with this.
The 2019 Abrogation of Article 370
The Indian government, led by the Bharatiya Janata Party, announced abrogation of Article 370 on the date of August 5, 2019. The same day Jammu and Kashmir was divided into two Union Territories by the reorganization of jammu and kashmir act.
- Jammu & Kashmir (with a legislative assembly)
- Ladakh (without a legislative assembly)
This was seen as a bold move to incorporate the region completely into India and governed by the same constitution like other states of the country. After this step of the government it becomes the topic of debate and face the legal challenges.
The government gives the justification by arguing that there is no longer need of the special status granted to Jammu and Kashmir because it hampered the development of that region.
It is stated that except Article 1 and Article 370, no part of the constitution would apply to Jammu and kashmir. Article 1 declared India as a ‘Union of States’ and Article 370 ‘granted special status to J&K’.
The only way to apply any provision of the constitution by the president, required the ‘consultation with the state government’. One more important thing is that Article 370 can not be amended or repealed itself. It can only be possible if the Constituent Assembly (people) of Jammu & Kashmir consented to it.
Legal Challenges to the Abrogation
After the abrogation of Article 370, several petitions were filed in the Apex Court challenging the constitutionality of the government's step. There are many arguments available that people were said against the abrogation, some of those are given below:
1. Constitutional Validity: Petitioners filed the suit, arguing that Article 370 was considered as “basic structure” of the Constitution which can not be changed or abrogated by Parliament. The principle of "basic structure" comes in the very famous Kesavananda Bharati case (1973), where the Supreme Court held that certain parts of the constitution can not be amended because it comes under the category of basic structure. For instance, Rule of Law, Right to life, Right to sleep and many more.
2. Consent of J&K Constituent Assembly: A large number of people in the country are against this move. It is declared that Article 370 could only be amended with the consent of the people of Jammu and Kashmir, otherwise there is no option to amend or repeal it. The argument said that the President's order could not be valid until the consent of the state.
3. Violation of Fundamental Rights: There are almost 5 years passed of the abrogation but still there are concerns for the basic rights. People still live there without the internet whereas now it is a complete part of India. Apart from this, suspension of certain fundamental rights also seen here, including the right to free movement.
4. Unilateral Decision: Another argument was that because the government is in majority they can not take arbitrary decisions. That is why the government's move was unconstitutional because it was done unilaterally, without any mutual understanding. If you did this for the benefit of the people then you should have consulted those people at once (with the people of Jammu and Kashmir or its elected representatives).
Constitutional Debate: Can Article 370 be Abrogated?
The core debate regarding the abrogation of Article 370 depends on whether the status of this article is permanent or temporary. This article itself stated that it can be altered or revoked by a presidential order, but the procedure of this is vague.
The main controversial point is whether it can be unilaterally revoked without the consent of the J&K or not? It is the crux of the legal debate. Some scholars argue that the abrogation of Article 370 weakens the country because it is part of the federal structure of Indian Constitution, whereas others debate that this provision was temporary in nature and that is why the abrogation is legally valid.
Conclusion
In recent Indian history the abrogation of Article 370 is one of the most considerable moves by the present government of india. This special status was enjoyed by J&K for decades but finally now it ends in 2019 by the Jammu and Kashmir reorganization act.
With this action of the government, it raises many questions about the relationship between the Union of India and Jammu and Kashmir. The scope of parliamentary power, and interpretation of constitutional provisions also fall into the well of questions. The legal challenges to the abrogation are still going on, and the judgment of the Supreme Court will likely define the future of Jammu and Kashmir’s relationship with the Indian Union.
Revocation of Article 370 is not just a legal matter whereas it is also rooted with political, social, and historical factors. Which all are defined above in detail. Jammu and Kashmir now fully enters India and promotes its development efficiently but it also raises some serious concerns regarding the rights of the people of the region.
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