By Nitish Kumar Naveen
INTRODUCTION
The constitution of India had brought this article 370 for given special status to the state of Jammu & Kashmir after the instrument of accession signed between Maharaja Hari Singh and Jawaharlal Nehru with the intent to maintain coordinal relationship between India and Jammu & Kashmir in 1947.The draft of this article had brought through Sheikh Abdullah the prime minister of J&K who was appointed by Maharaja Hari Singh and later it was drafted by Gopalswami Ayyangar whom was former diwan to the former Maharaja Hari Singh.[1]
As per this article except for defense, finance, communication and external affairs, parliament needs permission of state government to apply any other laws. This article had empowered through article 35a of constitution of India which has exclusively notable benefit to the permanent residents. It gives the citizens of Jammu and Kashmir specific rights and forbids people from outside the state to buy immovable property. Jammu and Kashmir State residents live in separate legislation, like property, citizenship and basic rights in relation to other Indian citizens. This makes it impossible for other Indian nationals to buy land in Jammu & Kashmir. The center also has no power under Article 360 of the Indian Constitution to declare a financial emergency, but it can be declared only at wartime and external aggression. [2]
The central govt had scraped this article through presidential order and consent of the governor of the state which had against the federal and democratic nature of the Constitution as it brings more powers under central control, when ideally the flow of power should be in the reverse direction. The govt vide the presidential order has changed the expression ‘Constituent Assembly of State’ which has used as legislative assembly of state through interpretation clause Art 367. In accordance with Article 92(1) of the Constitution of the J&K each proclamation made by the governor during the governor rule must be submitted to the State Assembly at its convocation. The Governor may take only temporary action and only the State Assembly shall take measures with lasting consequences. It has been absence of political, legal and constitutional clarity on theses vexed issues. There had several judicial decisions which establish that article 370 is permanent in nature because the constituent assembly of Kashmir dissolved itself without making such recommendation.
The Supreme Court has refused to interpret the word ‘modification’ as used in Article 370 (1) (d) in any “narrow or pedantic sense”.In Puranlal Lakhanpal vs. The President of India, The Supreme Court has prepared slight changes to the Constitution on the President's powers under Article 370. The Court of Apex argued that, pursuant to Article 370, the President could amend an existing Constitutional provision. The judgment was nevertheless silent whether the President can introduce a new Article without the knowledge of the Parliament. It remained open to this question. But constitutional makers wished to protect the interest of the State against the acts of the central government they had made in accordance with Article 370(3).The governor had acted guardian of state which had done in interest of central government not in the interest of state. [3]
While there was another case Raghunath Ganpat Rao v. Union of India, The SC held that this cannot ignore which has integral part of the constitution. It was shocking that without any debate or any discussion in any unconstitutional matter it was revoked.
However, In Prem Nath Kaul v. State of J&K, the Supreme Court held that “the Constitution-makers attached great importance to the final decision of the Constituent Assembly” and held that the President’s powers under Article 370 could only be continued if the Constituent Assembly of J&K gave its “final approval” for him to do so.
In Sampat Prakash Vs State of Jammu and Kashmir, In that case, the petitioner argued that orders issued by the President in accordance with Article 370 of the Constitution were unconstitutional since Article 370 ceased to be in force once the Constituent Assembly of J&K had been dissolves. The court considered that Art 370 was a permanent provision of the Constitution as the constitutional assembly of J&K was dissolved. Article 370(3) provides that Article 370 will not operate until the President has given orders on the recommendation of the Constituent Assembly of J&K and that the Constituent Assembly of J&K has failed to make any such recommendations. On the contrary, the Constituent Assembly recommended that only one amendment be applied to Article370, namely that the word "Maharaja" be replaced in the Explanation by "Sadar-i-Riyasat".
In 2018, Kumari Vijayalakshmi Jha Vs Union of India & Anron 11 April 2017, the Supreme Court has ruled that Article 370 has acquired permanent feature in the Indian Constitution. Similarly in State Bank of India Vs Santosh Gupta, The same permanent ruling was made by the Supreme Court. India requires the government of Jammu and Kashmir to apply state laws, except on defence , foreign affairs, finance and communications. The state law is totally different to the rest of India in respect of fundamental rights, property and citizenship. The competition was only temporary as ratification was required by the Constituent Assembly. Only after ratification by the State Constituent Assembly can this article be scrapped. The government has every legitimate power to enact legislation relating to welfare, cultural, personal and procedural law.
In several areas, Article 370 and 35A were revoked in Kashmir Section 144 CrPC. The District Magistrate passed orders to impose Section 144 of Morning 6 A.M. on the evening of 4 August 2019. August 5th 2019. The phones and internet services are shut down and Three Ex CM's of J&K were arrested by house arrests because they asked all political parties to take up this Central Government move as one unit. It was done to prevent from riot and also have not allowed assembly of more than 5 people in any area which had been imposed. It was assault by the central government which had created in the mind of the people of Kashmir’s from preventing any unrest situation which will happen in future. Till now they have not got internet services of 4G because Government had feared that they can exposed it before this world.
Most of the Valley's newspapers can't update their website e-paper versions. Communication and internet blockage are badly affected in newspapers. Kashmir-based reporters struggle to enter areas surrounded by security forces. The streets throughout the valley are full of obstacles to restrict protesters movement. The students of Kashmir, who study in Jammu and Kashmir, face tough times and financial scarcity for a large number of them. While the government in Kashmir gave the people a very limited number of accesses satellite telephones. The people who came to call their loved ones had to wait hours at queues. Although after 20 days of suspension, the administration restored the landline in Kashmir it proved also to be a joke since it was not put into practice.
In Kashmir, the Security Agencies have arrested more than 500 people including political leaders and activities, in the light of communication shutdowns and further restrictions, as the Administration sees them as a threat to peace and peace in the Kashmir Valley. Mehbooba Mufti, Omar Abdullah, Farooq Abdullah, Sajad Ghani Lone, Shah Faisal are among those. Most people in the Valley are using mobile telephones, and there is much less landline telephones. The schools in the valley are closed and the educational situation of the students is seriously affected. Since 5 August, the schools have been closed down in the valley.
At the International level, the solution that was drafted had three conditions when India approached the United Nations to solve the Kashmir crisis:
Demilitarisation of PoK by Pakistan
Demilitarisation by India
A referendum to be conducted wherein the Kashmiris will decide their fate
CONCLUSION
Although after abrogation of Article 370 state of Jammu & Kashmir had bifurcate b/w Jammu Kashmir with state legislature and Ladakh without state legislature. The primary aim was that economically backward people be reserved and Indian penal code of 1860 substitute for the Ranbir penal code. These state changes have led to many facets of critique from all over the country's student and pressure groups, who believe that this would alienate further Kashmiris, but when we examine it attentively, this is a calculated stage in order to guarantee equity with them and with all Indians because they have certain special powers. In the past, Jammu and Kashmir residents will benefit from various social welfare programs that have been implemented with a similar right to school; they will be given legislation such as the right to information. Even after marrying non-Kashmiri women may keep their property with them. The state provides several employment opportunities which allow them to live a safe and decent life, and to be a territory of union would ultimately mean that their security is in the centre's hands. This move has transmitted a clear message across the border that, unlike Pakistan, India can tackle domestic problems on all fronts without seeking external aid. This power exercise shows that India is a sovereign country that is independent of other countries. While many questioned this move as it was not spoken to many people, we will know over the course of time whether or not it is successful. The only Muslim-majority State of India is Kashmir. [4]
The intention of GOI is plain and unclear. But this is a sentiment that many in the state echoed – the repeal of Article 370 and, by extension, Article 35A are regarded as opening up the doors so to speak, enabling Hindus from other parts of India to migrate to the state . In other words, the only Muslim majority State in India is the Muslim population who are deemed unable to become second-class citizens.
The Government claimed that it had been significantly restricted to applying Article 370 and 35a restricting land transfer as a consequence of private investment in development work. No large state-built industries and therefore no large investment in education, health and tourism were restricted, particularly for young people. State industrialization would increase local young people's jobs opportunities. Gardening and food processing are boosting and every small, medium, and large farmer will benefit and the crafts sector, which had previously been limited to specific destinations, will now be able to export directly and work together both nationally and internationally and will also benefit poor craftspeople in villages.
No Consent of the People
The underlying agreement, however, was that J&K 's accession instrument was the basis for J&K’s accession to India, since October 1947 and that no change was made without people's consent. In the early years, Indian leaders had gone so far as to suggest that there was a referendum on the right to even separate the people of Kashmir from the Union of India. Although a plebiscite is no longer feasible, Article 370's motive principle is that without the "concurrence" of its people by their elected representatives no fundamental constitutional change is made in J&K. For this reason the declaration of the President, based on both chambers of parliament resolutions rather than the State legislature of J&K, violates, although perhaps not in its letter, the spirit of Article 370.
Converting a State into a Union Territory
Some scholars contend that it is difficult to turn a state into a union territory. Article 3 of the Constitution grants Parliament the power to "shape [the Territory of Union] by dividing the territory from any State," to "deplete any State's territories, to alter any State's borders," and to "change any State's name." That is why the Supreme Court declared that India is "an indestructible Union of destroyable units," and held that Parliament should "extinguish" the borders of a state, and not merely alter the borders of a State. Under the presidential order of 1954, however, the parliament had to secure the consent of the state parliament there before exercising any powers in accordance with Article 3 of the Constitution in J&K. Once more, the President violated the spirit of Article 370 of the Constitution by abrogating the 1954 order without the approval of the state legislature. In the absence of an order of 1954, Article 3 of the Constitution requires the Parliament, for states other than J&K to obtain opinions of the national legislature prior to any one of them having done so.
Also welcome changes have been made to Article 370. In J&K, for example, land reforms were implemented because of the right to shape their own rules. Land has been granted from the landlords to farmers and landless labors. Certain experts have said that the Indians in the state have no feeling. Some Kashmiri politicians and separatists have come to believe that people in Kashmir have a different identity and that the provisions of Article 370 in the Indian Constitution indicate that they are not part of India, and that they have their identities completely different from those of the Americans. [5]
The responsibility lies in power and independence. No damage can be done by giving state special powers. This will lead to power decentralization and better governance as well. However, we should be aware and not violate the fundamental rights of every citizen. Any special status given for a person or a state is not an hour's requirement. We must adapt and include all as equal in changing times. The Indian government seeks to develop the areas of Jammu and Kashmir, but without citizens across the Indian Territory, the goal cannot be achieved. The government should provide for inclusive Kashmir growth. Kashmir, part of India, ought to have liberal policies and policies that are identical to other Indian states. K Not only does this help to solve disputes in the overall development of Kashmir. India should have equal laws, restrictions and privileges for all its citizens as a democratic country. In order to arrive at the necessary conclusion, last but not least, the consent of Jammu And Kashmir residents regarding the abrogation of Section 370 is also required. [6]
The action must therefore start with a political and judicial fusion. The judiciary might look to ensure that all indigenous citizens of the state have the same rights. Legal Eagles must go to court, stating that Article 35a infringes upon the principle of equality which forms part of the basic structure of our Constitution and, in violation of the noble principles set out in the preamble itself, a constitution for J&K State establishing a privileged class of citizens designated as permanent residents. The Lok Sabha and Rajya Sabha should develop a mechanism for transparent and mutual working.
Kashmiri people have a deep sense of subjugation and alienation in their minds, such as AFSPA and the failure to take appropriate action against the excessively military force. We have to realize that India does not mean any harm to J&K. And the people of Kashmir are as much part of India as Kashmir. It is our duty to make it clear. This need to develop and encourage one nation, one constitution and one law follow in the country which has ultimate goal to bring J&K within mainstream of constitution without Article 370. [7]
REFERENCES
Website
http://thelawbrigade.com/wp-content/uploads/2019/05/adityajain.pdf
Supra Note 4
Dr. Abhinav Chandrachud, The Abrogation of Article 370, Retrieved from SSRN-id3448331.pdf