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Abrogation of Article 370 - A Historical Move

- 02 Sep 2019

    This is an award-winning article at the Think India 1st National Article Writing Competition 2019.

India is a country known for its unity in diversity. But how can a country be united if there is discrimination. Abrogation of Article 370 is one of the major steps to eradicate some discrimination, abolition of which will instill the feeling of oneness among each and every citizen of our motherland, India. On one hand, Article 370 of our constitution separated Jammu and Kashmir from other states, on other, Article 35A created discrimination among the people living in there.

Article 370

According to Article 370, Jammu and Kashmir is just a state of India on which the central government has no authority regarding its name, area and boundary without prior permission of the state government unlike any other Indian states. Central government is only entrusted with powers concerning defence, foreign affairs and communication. Jammu and Kashmir has its own constitution with its own state flag. Other clauses which are in this article are regarding right to property that only permanent residents can buy immovable property there. Residents of Jammu and Kashmir are given two citizenship, one of Indian and other one of state of Jammu and Kashmir. The most discriminatory point lies here is that if any Kashmiri girl marries to any outsider or foreigner, then she will lose her citizenship as well as her right over her immovable property which in 2002 as stated by Hon’ble Supreme Court that in this case the woman will not lose right of title over her immovable property but she cannot transfer it to her children in any case. This directly hammered on the right of Kashmiri girl to marry of her own choice. However no such adverse effect is in case of Kashmiri boy. The most ironical point here is if any Kashmiri girl marries a Pakistani boy, she will not face any such consequences on her citizenship and right to transfer or buy any property there and if any Pakistani boy marries a Kashmiri girl, he will acquire Indian citizenship. The other point lies here is that if any Indian citizen moves to any other country and acquires that respective country’s citizenship then that person loses his/her Indian citizenship but if any Indian citizen who is permanent resident of Jammu and Kashmir moves to Pakistan and then return back to India, he/she will again gain his/her Indian citizenship.

Also this article is a way to separate Jammu and Kashmir from India as generally it is an offence to insult anything given national status like national anthem, national emblem etc., but in Jammu and Kashmir it is not an offence. Due to this very article only Article 360, that is financial emergency cannot be imposed there and any amendment in the constitution can be imposed there, like any other Indian states only if President of India especially directs it.

Article 35A

Article 35A gives special status to Jammu and Kashmir. It empowers state legislature to define “citizen of Jammu and Kashmir” and it is defined by them as “any resident of Jammu and Kashmir who resided in Jammu and Kashmir till 14th May, 1954, or has resided there for at least ten years and has lawfully acquired immovable property there”. Apart from this, no one can buy property or acquire citizenship of Jammu and Kashmir. This article also undermines the interest of minorities and schedule caste living there from generation to generation like Valmikis and Gorkhas. Apart from them many hindus living there since 1947 are still refugees of which 85% are backwards who are not entitled to hold government jobs and property. They are even prohibited from studying in government educational institutions and from voting in municipality and Panchayat elections. 

Incorporation and abrogation of Article 370 and 35A

However, this discriminatory article which took birth a long back took a lot of effort of our central government to be repealed as there was a series of events which took place since independence. The very first incident was on 26th October 1947, when Raja Hari Singh of Jammu and Kashmir signed instrument of accession with government of India. The Raja also demanded special status of his state. On 17th October 1949, Article 370 was incorporated in the Indian constitution. On 26th of January 1950 when constitution was implemented its Article 1 stated that Jammu and Kashmir is state of India and also added Article 370 with temporary as its first word. On 14th May 1954, the then President of India, Dr. Rajendra Prasad passed an order named, “The constitution application to Jammu and Kashmir order, 1954”. This order incorporated Article 35A in the Indian constitution and constitution of Jammu and Kashmir. However, generally in many books on Indian constitution we may not find this article but one may definitely get it in constitution of Jammu and Kashmir. Then, on 17th November, 1956 Jammu and Kashmir adopted its own constitution. Though its constitution too declared Jammu and Kashmir as India’s integral part but still many changes took place there between 1947 to 1990. Due to the cloud of problems over there, Armed Forces Special Power Act was imposed there. In 2015, Bhartiya Janta Party formed government in alliance with People’s Democratic Party in Jammu and Kashmir and in 2016 Mehbooba Mufti became chief minister of the state. But due to internal tension among the coalition government formed in the state, BJP broke the alliance with PDP. Then Article 92 of the constitution of the state provides that if the state machinery is not working properly then governor’s rule may be imposed there and thus, in December 2018, governor’s rule was imposed in Jammu and Kashmir. In May, 2019, BJP wins the parliamentary election and the election manifesto of BJP clearly stated about the removal of Article 370 and 35A from Jammu and Kashmir.

However, we cannot say that the step taken by our central government was like a bed of roses, however it was full of thorns as the removal procedure of Article 370 was like a dead lock. It was stated that if a President wants, he can issue a public order or a public notification and repeal this article but he has to take permission from the constituent assembly of the state. But the problem with this was constituent assembly of Jammu and Kashmir which was empowered to give the permission was already dissolved in 1957 and this created a dead lock. Even at the time of drafting constitution our principal draftsman Dr.B.R. Ambedkar was against Article 370 and he denied to incorporate it which was later incorporated by Gopalswami Ayyangar who was also the diwan of Raja Hari Singh of Kashmir.

On 5th August,2019 President Ram Nath Kovind used his powers on the clause 1 of the Article 370 and issued another Presidential order “The Constitution (Application to Jammu and Kashmir) order,2019” which superseded the Presidential order of 1954 and thus removed article 35A and constitution of Jammu and Kashmir.

Soon after the Presidential Order of 2019 was released, Home minister Amit Shah proposed two resolutions, first to make Article 370 inoperative and second to bring Jammu and Kashmir reorganization bill to bring absolute democracy in the state and to eradicate discrimination prevalent there. Presidential order of 2019 brought changes as it added four clauses in Article 367 which replaced the word constituent assembly to legislative assembly removed hurdle from the path of removing Article 370. Regarding second resolution, Jammu and Kashmir reorganization bill stated a new union territory will be made which will comprise Ladakh and also a new union territory named Jammu and Kashmir will be made wherein Jammu and Kashmir will be with legislature and Ladakh will be without legislature.

Conclusion and suggestions

According to me, the lack of benefits which were experienced by them before the abrogation of Article 370 and 35A will be finished. For instance, the example put forward by our Home minister Sri.Amit Shah that due to these articles, Ayushman Bharat scheme launched by our central government days back which benefited the entire country, was not launched in Jammu and Kashmir because of so many limitations provided. Due to these limitations, no qualified person ever wanted to live there for the development of the state. Doctors didn’t want to go there as they were deprived of many of their rights which they can enjoy in other states and union territories of India.

According to me, abrogation of Article 370 and Article 35A will have very fruitful impact not only on Jammu and Kashmir but on whole of India as this will eradicate the differences among all the Indian states and union territories and will put whole of India on the same platform. This will also eradicate the discrimination faced by people of Jammu and Kashmir whether be initially recognized citizens of the state or the minorities like Valmikis and Gorkhas. I also think that this will also help in making Jammu and Kashmir peaceful and will remove the black clouds of terror from the state.

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