This article is written by Rashmi kiran, a student pursuing BA LLB (1 st year) at Central University of South Bihar. This article covers the abrogation of Article 370 and its aftermath effect worldwide and leading case laws, Supreme court judgments , recent development and present situation of the territory .
Table of contents :-
Introduction
Article 370
How article 370 was being used?
Impacts of abrogation of Article 370
Advantages of abrogation of Article 370
Disadvantages of abrogation of Article 370
Aftermath condition after abrogation of Article 370
Pakistan reaction towards abrogation of Article 370
International sphere reaction and condition after abrogation of Article 370
Legal implications of abrogation of Article 370
Leading case laws which challenged article 370
Case law of Manohar lal sharma v. Union of India
Further developments
Recent developments
Conclusion
Introduction
Jammu & Kashmir primarily a state, with the abrogation of article 370 have become a union territory, located in the northern part with natural beauty and picturesque location it had always been a favoured destination by the tourists across the world as well as a heated topic between India, Pakistan and China . Being the integral part of India to maintain federalism in practice it was given autonomy under Article 370, as preservation of diversity granting autonomy leads to a lasting integration but the government of India on 5th August 2019, revoked the special status granted under Article 370 of the Indian constitution to the state of Jammu & Kashmir.
Article 370
Article 370 of the Indian constitution accorded special status to Jammu & Kashmir granting autonomy as compared to other states of India with having its own Constitution,flag, penal code ,laws ,national anthem etc. Since ,then it have always grabbed the attention with having two sided views on the special status accorded to it , while the first group asks for more autonomy and the other group claims that special status accorded to the state not let it’s fuller integration with India and democracy is also not practiced in real sense.
Article 35A was issued under Article 370 and was inserted through the Constitution order,1954 because of which no outsider could neither own a property in Jammu & Kashmir nor get a job.
How Article 370 was used
It was basically a temporary provision incorporated but despite of ,it continued for so long hampering the unity and integrity of the Nation just being used because of the vote bank ,it led to foster the separatist feeling to a great extent always being used up by the politicians ,bureaucrats, extremists organizations for their own self ,i.e. settling their own needs and expanding their own power ,financial position on the extent of exploiting the poor and down trodden sections just making all the use of land which were to be sold at high rate and were expensive selling it under the lowest possible price to a particular minority community professing ISLAM ,i.e. Muslim under the façade of the Roshni act and all anti- India activities were taking place up to a large extent which all led to a lot of communal upsurge and violence with rise to force conversions were done and no protection being provided to the Hindus which made the kashmiri pandits migrate in large number .
D.r. BR ambedkar had earlier only warned against Article 370 mentioning a quote “ you want Indian to defend Kashmir ,give Kashmir equal rights over India but you deny India and Indians all rights in Kashmir” , how it could happen so ?
Impacts of abrogation of Article 370
With Article 370 Jammu & Kashmir enjoyed special status and a kind of extraordinary powers so with the scraping of the article altogether turned it back from extraordinary to ordinary which meant that all laws applicable in India would be applicable in Jammu & Kashmir as well it will not have a separate constitution , the citizens of the state could now enjoy the fundamental rights enshrined under the Indian Constitution , it will not have a seperate flag or national anthem for the state and the citizens will have to respect the ideals and rules of the Constitution and moreover everybody could purchase land and get jobs under the state and all the people of the state would come under the purview of Indian citizens. It could also be well understood by looking at its positive as well as negative impact.
Advantages of abrogation of Article 370
It have various advantages linked with the abrogation of article which includes these as follows :-
People could now avail different job opportunities and appropriate measures could now be taken to create different kind of laws to control corruption and curb terrorism as well as it will also led to the real integration of Jammu & Kashmir with India and strengthen the principles of federalism.
Centre could now provide better medical facilities so as to lower down the mortality rate and to develop the territory to its fullest and not just let it be for namesake called as heaven on earth but to turn it in reality as well.
This move taken by the government solved out one of the biggest blunders of our history and it instill the feeling of “one Nation one Constitution “.
Disadvantages of abrogation of Article 370
While everything comes with it pros and cons so,this also have some negative points related with it .
First of all it had led to strained relations with Pakistan because of which violence would take place ,terrorist attack would be planned and some of the locals of Kashmir are not happy with the move so ,they would also indulge in violence which would of course lead to communal tensions and foster separatism.
The other kind of problem being women are threatened that now anybody could marry them as they wouldn’t lose their citizenship unlike earlier.
Aftermath condition after abrogation of Article 370
As, their was president rule ahead of the scraping down of the article so the president consulted with the governor and the move was made to abrogate the article. In addition to abrogation of Article 370 , two seperate bills were also introduced : Jammu & kashmir Reorganisation bill and Jammu & Kashmir Reservation bill, 2019 while the former deals with bifurcation of state into two seperate Union territory of Jammu & Kashmir and the latter deals with reservation of seats for EWS in educational institutions and government jobs in Kashmir.
Alongwith all this communication lines were cut off so as to avoid any kind of misleading information, to prevent propagation of fake news to go outside as their were many misleading reports coming on on brutality done with people of Kashmir so as to prevent any kind of unrest further so communication needed to be cut- off and section 144 ; i.e. Curfew was imposed in all the areas and shutting down everything from educational institutions to shops and many kashmiri leaders and protestors were arrested to avoid outbreak of violence . Though aftersome time schools were opened but students didn’t went to school everything started gradually, lockdown was lifted up, phone services with 2G services were resumed with restricting full internet access so as to prevent further turmoil. But, soon thereafter violence errupted with instances of stone pelting at police, security officers etc.
Pakistan reaction to abrogation of Article 370
Pakistan take on the abrogation of article 370 was that it felt and see the decision as illegal and a unilateral one without talking any kind of opinion from the people of the region and it was violation of United Nations Security Council resolutions and soon Pakistan began to act on it with downgrading it’s relationship with India by calling it’s ambassador from India, and all train services were suspended and banning every kind of cultural exchange and suspending it’s trade relations with putting restrictions on exports, import and also said that it would take the matter to International court of Justice as it is related with the violation of human rights in India.
International sphere reaction and condition after abrogation of Article 370
In International sphere all Indians belonging to Hindu religion mainly the Kashmiri pandits were happy with the move and supported the government and all the extremists and Muslims were against this move and they indulged in violence. Number of demonstration and rallies were organised against the move of government violence activities like pelting of stones and all such activities take place in countries like Canada, Uk, United States etc.
Legal implications of abrogation of Article 370
With the scraping of the article now all the laws of India are applicable in Jammu & Kashmir, people could enjoy all the fundamental rights, and have to abide and respect with the ideals of Constitution and fundamental duties, the Indian penal code was applicable from the time being and Ranbir penal code was removed, it made the territory more democratic and disputes were being settled in the high court of Jammu & Kashmir.
Leading case laws which challenged article 370
On 5th August the Union abrogated Article 370 but it wasn’t the first time that it had been challenged in the court it have been done earlier as well on various grounds. It has been challenged first of all in the leading case of Prem Nath Kaul v. Jammu & Kashmir, ( 1959) in which it was decided that Maharaja legislative powers were not restricted by Article 370 and in the case of Sampat Prakash v. Jammu & Kashmir (1968),it was held that Article 370 never ceased to be operative and their couldn’t be any challenge on the ground of validity of orders passed by the president and other than this further in different leading case laws article 370 was dealt with : - Mohammed maqbool Dammo v Jammu & Kashmir (1972) , SBI v Santosh Gupta (2016 ) while One case is still pending ie. Dr. Charu wali khanna v. Union of India. After the abrogation of article 370 several petitions have been filed by the lawyers, activists , private individuals, political parties in the apex court challenging the Jammu & Kashmir Reorganisation Act, 2019 .
Case law of Manohar lal sharma v. Union of India
In this case a petition had been filed challenging the validity of article 370 abrogation by advocate ML Sharma and the National Conference in which they made two different claims that the president couldn’t amend without the concurrence of constituent assembly and the second one was the down gradation of Jammu & Kashmir from a state to Union territory under Article 3 is not justified and unconstitutional and further they requested that it should be heard by a larger bench of seven judges as the precedent cases in which article 370 was present mainly the case of Prem Nath v Jammu & Kashmir and Sampat prakash v. Jammu & Kashmir was contradictory to each other in which Supreme court said that that it would be heard by a seven large bench only after the hearing of submissions from both parties and so it didn’t happened the hearing remained inconclusive and was to be continued from January, 2020.
Further developments
The Supreme Court refused to refer the case to a larger seven judge bench as their are no such reasons felt for it and also court disagrees with the plea of petitioners that the court didn’t follow its judgement in the case of Prem Nath kaul and Sampath prakash case. Further the court clarifies that the judgement didn’t contradicted and also that both are on different matters. So, the court in all declined to refer the case to a seven- judge bench.
Recent developments
The recent situation in Jammu & Kashmir includes various points :-
The first one primarily the Delhi riots that took place in showing protest against the CAA bill and also their was a kind of anger against the scraping of article 370 in some extremists who uses this in a very bad way by using violent methods, anti – India speeches are being delivered at various recognized universities like JNU, AMU, DU etc .
The cease fire violations and the terrorist activities are being planned by Pakistan every now and then although Indian Army are able to combat it but still the situation is such.
Although their are terrorist activities and cease fire violations but it is also true that all this have shown a downfall after the special status have been removed with the abrogation of the Article 370 .
The people have understood all the advantages of the move taken by government and wanted to live with peace.
Amidst currently during the covid- 19 pandemic situation going on internet services are being restricted to the use of 2G ‘s network only.
Conclusion
With all this concluding it in on a mixed note while the special status have been taken with the abrogation of the article 370 it does have both positive as well as negative aspects but we couldn’t assess it soon as it had just been abrogated so it would be early to judge it as a good measure or bad but still on a note it could be said that it have brought some very good results along with it, with it although their has been violence and unrest among the people who were mainly extremists and Muslim at large but the move is welcomed by others and it does a lot reducing the terrorist activities, terrorist mindset have been deeply shaken up with this move of government it have led to stop forced conversion of the people, people could now avail jobs, fundamental rights which are violated they could be enforced now and solved it out in the High court. Kashmiri pandits have returned in large numbers back to their home and could live under safety and protection, although some restriction with internet are still their but it is all for the betterment of one and all.
References
m.economictimes.com
scoobserver.in
mbarendezvous.om
iasexpress.net
indiandefencereview.com
en.m.wikipedia.org
indiatoday.in
Political science class 12 Ncert book chapter 8