Abstract

This paper tries to make an attempt to study and critically analyze the abrogation of Article 370 by the central government. A detailed introduction covers all the events from the historical background till the recent revocation of the article by the union government. The series of events from the accession of Jammu and Kashmir into India to the incorporation of Article 35A into the constitution are all discussed in a comprehensive manner. The provisions of both the Articles i.e.; Article 370 as well as Article 35A have been examined. The special status provisions are discussed and how they differ from the other states. The opinions of the people supporting and defying the abrogation are studied. The assertion that Article 370 and 35A are violative to the basic structure of the Indian Constitution and towards woman of the state is looked into. Article 14,15 and 21 along with the Preamble of the Indian Constitution are studied to examine the assertion. Interpretation of the articles and assumptions as to how Article 370 infringes the constitution and woman rights are stated. The petitions before the Supreme Court regarding the constitutionality of the revocation and the indefinite shut down of internet and communications in the valley are thoroughly studied. The agony and pain of the local people and their views regarding the removal and the changes it will bring into their lives are all studied. The political parties condemning as well as backing the Centre’s move and their notions are all discussed in a comprehensive manner. The response of the international community and the major castigation by China and Pakistan are covered. The bills and resolutions presented by Home Minister Amit Shah and the new Jammu and Kashmir Reorganization Act, 2019 is incorporated in the paper which provides for the bifurcation of the state. Analysis and concrete viewpoints have been amalgamated in the paper.

Keywords- J&K, Constitution of India, Article 370, Article 35A, Instrument of Accession (IoA), Violative to Basic Structure, Non-Permanent Resident (NPR), Permanent Resident (PR), Two Union Territories (Jammu and Kashmir and Ladakh).

INTRODUCTION

            “Change does not change tradition. It strengthens it. Change is a challenge and an opportunity, not a threat”^[1]

            Pre-independent India had 565 princely states and these were ruled by the princes. These princely states were not ruled by the British Umpire but these princes owed their allegiance to the Britishers. Partition plan was announced in June 1947 and it became clear that country should now be divided into India and Pakistan. But what will be the fate of these princely states was a big question back then and these princely states were given options either to join India or Pakistan or remain independent. Some princely states joined India while some joined Pakistan except the princely state of Jammu & Kashmir.

            J&K was then ruled by Maharaja Hari Singh and he signed a Standstill Agreement on August 12, 1947 with both India and Pakistan and he made it very clear that he won’t join either India or Pakistan. In 1947 the Indian Independence Act was passed through which India became completely independent and Pakistan also became independent as a separate country. This Act led to the lapse of all the relations between the British Crown and the princely states. So, in August 1947 when India and Pakistan became as an independent nation. J&K also became an independent state. However, in J&K a very popular movement was taking its shape which was led by very charismatic leader Mr. Sheik Mohammed Abdullah who wanted to overthrow the monarchy of Maharaja Hari Singh and wanted to establish a democratic socialist state of J&K. Mr. Abdulla was however in favor of J&K becoming a part of India despite the fact that the majority of the population in J&K are Muslims which was not liked by Pakistan and as a result Pakistan attacked Kashmir and violated the Standstill Agreement which they have signed with Maharaja Hari Singh and wanted to capture Jammu and Kashmir through force. At this point Maharaja Hari Singh asked for help from the government of India. Lord Mountbatten was the Governor General of India and said that India will not help him and will only help if he signs the Instrument of Accession (IoA) with India. Instrument of Accession stated that J&K will accede with the Dominion of India which Maharaja Hari Singh signed with India on October 26, 1947 and on October 27, 1947 Lord Mountbatten accepted this IoA and by this Jammu and Kashmir became the part of India. All other princely states also signed the Instrument of Accession with the government of India just like J&K did but the difference was they also signed the Merger Agreements with the government and due to which they lost all their individual identities. But Jammu and Kashmir only signed the IoA with the government and no Merger Agreement. However, the IoA Maharaja Hari Singh signed with the GoI was also conditional through which they only gave three powers to the parliament of India which were-

• Defense
• External Affairs
• Communication

            This made very clear that the parliament of India can make laws only on these three matters and on rest of the matters the laws will be made by the Government of J&K.

            After the IoA the Indian Army went to the battle ground to fight against Pakistan. Meanwhile the Prime Minister of India Mr. Jawahar Lal Nehru approached the United Nations seeking their help to end the war in J&K. He also persuaded Maharaja Hari Singh to give up his powers and transfer them to Sheik Mohammed Abdulla who was appointed as the Prime Minister of Jammu and Kashmir. United Nations was then controlled by USA and USA had very close relationship with Pakistan so United Nations called for a ceasefire and as a result the war between India and Pakistan ended but United Nations Security Council asked for another resolution which was calling for plebiscite or right to self-determination. United Nations Security Council said that India & Pakistan both should withdraw their troops from Jammu and Kashmir and there should be a plebiscite and people of J&K should decide whether they want to join India or Pakistan in the year 1948.In India the Drafting Committee was drafting the constitution on the other side United Nations was asking for demilitarization so the question which was fuming all over the country was that what could be the constitutional link between J&K and Union of India. This issue was debated for more than five months as to what should be the relationship between J&K and India and an Article was given which became Article 370 of the Indian Constitution and the title of this Article was A Temporary Provision. This Article was drafted by Gopalswami Ayyangar a minister in union however the key drafter Mr. Ambedkar and Sardar Patel opposed it because they wanted to count in as one nation and not to give any special status to one state. The title was temporary provision because till the time demilitarization is completed in J&K and plebiscite takes place there has to be some temporary constitutional link between India and Jammu & Kashmir and this temporary link was Article 370 of Indian Constitution and this is how Article 370 came into the picture.

            Article 370 says that the Parliament of India can make laws on only those subjects mentioned in the Instrument of Accession which are Defense, External Affairs and Communication and whenever the Parliament make laws on these subjects, the government of Jammu and Kashmir should be consulted.

            Now the question here is Can the other provisions of the Constitution of India be applied to J&K? Yes, a presidential order has to be issued and the other provisions of the constitution can be applied to the state. But Article 370 says that presidential order cannot be issued without the concurrence or acceptance from the government of J&K no provisions can be applied to the state. However, if the government of J&K gives the permission to the Presidential Order and apply this provision to J&K then the constituent assembly of J&K will have to ratify the decision of the government of Jammu and Kashmir.

            Now how the constituent assembly came into picture in J&K? The Prime Minister of India Pt. Jawaharlal Nehru went to Srinagar and assured the people of J&K plebiscite or Right to Self- Determination. While all this was going on and to give signal to the rest of the world that India has not acquired J&K through force or only because one individual Maharaja Hari Singh signed IoA but the accession of J&K is as per the will of the majority of the people of J&K. The then Prime Minister Mr. Sheik Mohammed Abdullah addressed the people of Jammu and Kashmir and told them that they will have their own constituent assembly and it will decide the future relations between J&K and India. Pt. Nehru liked the idea and said that now no one will question that India has acquired J&K through force because the constituent assembly will make their own constitution for J&K and determine the relation with India and J&K will become an integral part of India. This is how the constituent assembly came into picture and all the members of this assembly belonged to J&K National Conference headed by Sheik Mohammed Abdullah.

            Article 370 also says that any amendment in the India Constitution under Article 368 cannot be automatically applied to J&K unless and until the govt. of J&K agrees. When the constitution of India was enacted only two Articles, (Article1 & 370) of the Indian Constitution were applicable to the state of J&K and no other provisions of the Indian Constitution were applicable in the state. In 1952 there were talks between Jawaharlal Nehru and Sheik Mohammed Abdullah because the other provisions such as Fundamental Rights(FR), Directive Principles of State Policy(DPSP), Jurisdiction of Supreme Court, Election Commission etc. were not applicable in the state of Jammu & Kashmir and to make these provisions applicable to the state of Jammu and Kashmir these talks led to the Delhi Agreement of 1952 and the result of this agreement was that the National Flag of India will have the same respect in J&K as in other parts of India but apart from this J&K will have their own Flag and the status of this flag will be equal to that of the Indian National Flag. It was also decided that J&K will have Sadr-e-Riyasat and this will be elected by the legislative assembly of J&K and this Sadr-e-Riyasat will be the head of the constituent assembly of Jammu and Kashmir. Apart from this J&K will have its own Prime Minister and these two positions Prime Minister and Sadr-e-Riyasat continued till 1965 but was eventually replaced by two positions of Chief Minister and Governor respectively through the Sixth Constitution of Jammu and Kashmir Amendment Act 1965 which was passed by the Congress government.

            The Constitutional (Application to Jammu and Kashmir) Order 1954 on May 14, 1954 by the President of India, Rajendra Prasad, settled some constitutional relationship between J&K and Union of India. It stated that Indian citizenship and all related benefits such as fundamental rights etc. were to be extended to the ‘permanent residents’ of J&K. It also incorporated Article 35A based on the 1952 Delhi Agreement which empowered the state legislature to legislate on the privileges of permanent residents and these privileges included the benefit of purchasing any immovable property, benefits in higher education and health care, means to vote, contest elections etc. Non-permanent residents of the state even though they are Indian citizens were not allowed to these privileges. Article 35A was added to the Indian Constitution through an appendix and is therefore not seen in the Indian Constitution but it is there in the Constitution of J&K. The jurisdiction of Supreme Court was also extended to the state and the Central government was given the power to declare National Emergency in the event of external aggression but the power in case of internal disturbances could only be exercised if the state government gives its concurrence. These provisions were in accordance with the Delhi Agreement of 9152 however there were some provisions which were not decided in the Delhi Agreement but were also implemented in the state of J&K such as the Financial relations between India & J&K and the fact that they would be same as they are in other states etc. On August 5 2019 the Government of India issued a constitutional order which superseded the 1954 order thus making all the provisions of the Indian constitution applicable to the state of J&K which led to the revocation of Article 35A thus ending the concept of permanent residents and the provisions relating to the immovable property which this effectively ended the concept of Article 370 because all the provisions of the constitution are now applicable within the state. The resolution was passed in both the houses of parliament with 2/3^rd majority which scattered the state into two Union Territories Jammu and Kashmir and Ladakh and abolished Article 370 and 35A and on August 6^th 2019 it was stated that all clauses of 370 except clause 1 will cease to be inoperative.

OBJECTIVES

• To understand and examine the Article and find loopholes if any.
• To analyze Supreme Court’s stand on the
• To examine the claim that Article 370 violates Article 14,15 and 21 of the Indian Constitution.
• To study the response on the move by the central government, views of the people residing in the valley, opposition and the international
• To understand the new Jammu and Kashmir Reorganization Act and study the new composition and changes that has taken place after the abrogation of erstwhile Article 370 and

HYPOTHESIS

            The abrogation of Article 370 and 35A is a progressive step and was necessary for the growth and advancement of the region as well as for the whole country. However, the indefinite shutdown of internet and communication was abuse of power and highly unconstitutional.

METHODOLOGY

            Research Aim- The research aims to provide information in an explanatory manner i.e.; it explains the causes and consequences of a well-defined issue and precise conclusions are for an established issue, here, Abrogation of Article 370 of Indian Constitution.

            This paper is written using basic research technique which aims to develop knowledge, theories and predictions.

            Research Data– Information was collected from a number of certified articles available online as well as online newspapers. All the arguments have been categorically represented along with authors view. Videos, Text books and internet sources have been referred thoroughly. A fixed research design was used as the subjects, scope of study, timescale, objectives were pre-determined by the author.

ARTICLE 370 AND ARTICLE 35A

            Article 370 of the Indian Constitution was drafted in Part 21 of the Indian Constitution which comprises of Temporary, Transitional and Special Provisions of our constitution and it gave Special Autonomous Status to the state of Jammu and Kashmir on October 17, 1949. This Article provides for a separate constitution for Jammu and Kashmir and it limits the Union Parliament to make laws on only three subjects which were mentioned in the Instrument of Accession(IoA) which were Defense, External Affairs and Communication and the rest provisions to be made through a Presidential Order which needs the concurrence of the state government. Under Article 370 the Parliament has no power to declare Financial Emergency in the state of J&K under Article 360 of Indian Constitution. The parliament can declare emergency only in case of External Aggression but not in case of Internal Disturbances unless the state government gives its concurrence. So, J&K has its own separate flag, constitution and penal code known as the Ranbir Penal Code. The Indian Penal Code applicable within Indian is not applicable in the state. The President’s Rule is not imposed in the state instead the Governor’s Rule is imposed.

            Article 1 and 370 are applicable in the state of J&K and apart from this all the provisions stated in the Presidential Order of 1954 are also applicable in the state. Article 370 clause 3 states that if the constituent assembly of J&K says that Article 370 should be abrogated and then the President through public notification agrees to the same than the Article can be abrogated. But the question of problem was that the constituent assembly of J&K was dissolved in 1957.

            Article 35A was incorporated in the Indian Constitution through an appendix and is therefore not seen in the Indian Constitution but is present in the J&K constitution. This article was a result of the Delhi Agreement of 1952 and it empowers J&K legislature to define “permanent citizens” and their rights and privileges which non-resident even though citizen of India is not entitled. Permanent residents were all persons who were a state subject as on 14 May 1554 or who has been resident of J&K for 10 years and has acquired immovable property lawfully within the state. Those people who were the residents of the princely state of J&K when it got merged with India and their descendants were called the state subjects. So basically, a person who is not a permanent resident of the state cannot vote in State Assembly or contest elections or can get any government jobs or any access to scholarships within the state. That person is not allowed to buy any immovable property in the state.

            How does the government remove Article 370? So, the only way Article 370 could be removed was through clause 3 which stated that the President can remove 370 but it will require the approval of the constituent assembly of the state of Jammu and Kashmir which was dissolved back in 1957. On August 5^th 2019 President Ram Nath Kovind issued an order through clause 1 of Article 370 known as The Constitution (Application to Jammu and Kashmir) Order, 2019 which stated that this order will replace the 1954 constitutional order issued by the then President Rajendra Prasad. The 2019 constitutional order added clause 4 in Article 367 which is the interpretation clause of Article 370 which stated that the word constituent assembly in Article 370 will now be considered as the legislative assembly thus ending the deadlock.

ANALYSIS

            Through Article 370 J&K gets special status however it is not the only state to enjoy such status. States like Manipur, Nagaland, Assam, Arunachal Pradesh, Mizoram, Sikkim, Gujarat, Maharashtra, Karnataka, Goa, Andhra Pradesh and Telangana also enjoys special status. Article 371, 371A to 371H and 371J deals with 11 such states and these states enjoys special status. However, 371I and 371E deals with Goa and Andhra Pradesh respectively but does not include any provision which can call it ‘special’. Article 370 and 371 were a part of the Indian Constitution from 26 Jan 1950 while Article 371A-I were added later into the constitution. Our Constitution recognizes the diverse culture, traditions, language etc. found in different states and they are an integral part of the country but these states have their own requirements which the constitution recognizes to safeguard their own culture etc.  Through Article 370 J&K gets separate flag, constitution, the tenure of the legislative assemble is 6 years unlike the rest of the Indian states where it is 5 years, Union Parliament cannot legislate freely like it can in other part of India. Through Article 35A Indians cannot purchase land in J&K, they don’t have voting rights, they cannot apply for any public jobs or scholarships etc. which are discriminatory in itself. Kashmiris have dual citizenship one of Kashmir and the other of India. No other state has such provisions. The critics argue that these provisions are discriminatory to the basic structure of the Constitution. By the abrogation of Article 370 Indians can now purchase property in Kashmir as a result the price of the land will increase and the local Kashmiris can lease out their land and can earn greater profits, educational opportunities will increase, the companies will come in the state to invest which will increase employment opportunities. These factors will lead to an overall economic development and as a result more jobs will be created. Increased employment and development will diminish terrorism as the local people will engage themselves in doing jobs. It will keep them engaged. Also, now Indian laws will be applied to the state so the Kashmiris can avail the benefits like Right to Education and Right to Information etc. Also, it will have a psychological impact that there is one constitution, one flag which will create a feeling of oneness amongst the people and they will feel more integrated.

            But many people were against it and they argue that the local people were not asked before doing this, thousands of troops came and the internet supply was shut off, the landlines were shut off, Kashmiri politicians were kept under house arrest. So, they claim that this was illegal occupation and they compare it with fascism. They say that it was unconstitutional and the government used a loophole because the state assembly was not in existence at that time. But the counter argument to this is if it was informed that this was going to happen then it would have led to a lot of violence and chaos. Also constitutional expert Subash Kashyap said that” the order was constitutionally sound and no legal and constitutional fault can be found in it”^[2]. However, after studying both the sides of argument it is subjective to determine who is correct and who isn’t but removal of 370 is a progressive step as it will help in the overall economic development in the state. Also, now opportunities will be created and can be availed by everyone including the Indian citizens which is clearly in accordance to Article 14 which was claimed to be violated amongst several other articles by Article 370 and 35A. Also, through discussions and prior information if the solution could have been found then it would not have taken us 72 years to find a solution to it. Also, this will curtail terrorism in the valley. Private companies and investments can uplift the economy of the state and will open doors for growth and advancement in the region and will unite the Kashmiris with the rest of the country. It will provide for better educational as well as healthcare for the people in the valley. So, this was a necessary step and it will be beneficial for all in the country.

ARBITRARY TO BASIC STRUCTURE

            Article 370 and 35A has been often claimed to be violative to the basic structure of the constitution. Many people claim that it is an infringement of Article 14, 15, 16 and 21 of the Indian Constitution. It is said that these articles violate the constitutional provisions which are established by law and are arbitrary to our constitution. Article 35A differences between permanent residents of the state and non-permanent residents and confers special privileges to the permanent residents of the state which is a clear violation of Article 14 Equality before law. Article 14 of Indian constitution clearly says that every person living within the territory of India has equal right before the law but in the state of J&K they are not given rights to vote, access to educational scholarships or healthcare or apply for state’s governmental jobs, they cannot contest elections, cannot buy land within the state because they are not the permanent residents of the state which is clearly a violation of the Fundamental Right which in itself is a clear violation of Article 14. It also violates Article 15 of the Indian Constitution which says no citizen should be discriminated by the state only on grounds of their caste, race, sex, religion or place of birth. Giving privileges on the basis of place of birth or condition has to be fulfilled for a person to be called a permanent resident is clear violation of Article 15. It also violates Article 21 of the Indian Constitution right to life and personal liberty. Right to life includes everything which makes human life complete and meaningful. It is also violative to the integrity of the nation as enshrined in our Preamble for the constitution. People in J&K always have a constant feeling of not being the part of India. I myself visited Kashmir in 2015 and the local people in Kashmir asked us Are you from India? To which my father said we are in India. You are also in India to which he said we are from Kashmir. Obviously, I will not generalize this as the thinking of all people residing in the state but definitely that man was not the only one to think like that and this feeling of not being a part of your own country is clearly against the unity and integrity of the country. When we go out of our country, we don’t designate ourselves by the state we live in but by our country “India” and we all are the citizens of India. We all are Indians not Rajasthani not Gujarati not Kashmiri. Restrictions on immovable property hinders the private and industrial sector which decreases growth and advancement in the valley and the direct outcome of which are the limited job availability in the state which increases terrorism in the valley as the local people are easily brainwashed by the militants. The increased terrorism in Kashmir led to the decrease in tourism in the valley as people are always frightened to visit due to sudden terrorist attacks on the army personnel. When I visited Kashmir there was such an attack in which many army personnel were injured and the terrorists were killed as a result the main road to Srinagar was blocked and we were told by the army to take the secondary route to the city. Many cars were stopped before the check post where the attack took place and we waited there with an apprehension of fear. It was quite an experience. Now coming back to my point Article 35A empowered the state legislature to define permanent residents and give them special privileges. Now the problem which arises here is that it violates the rights of women. If a woman marries a person who isn’t the permanent resident of the valley, she lost her status of permanent resident as a result of which she was denied the right to inherit or own property in the valley. However, this provision was overruled by J&K High Court in State of Jammu and Kashmir V. Susheela Sawney in 2002. It said that women marrying non-permanent resident (NPR) will not lose her status as PR neither do will she lose the right to inherit or buy immovable property within the state but this judgement did not give such rights to their progeny. However, this provision does not apply to the children to a male PR marrying female NPR which in itself is a violation of gender equality.

ANALYSIS

            Article 370 and 35A infringes the fundamental rights and were discriminatory to woman. Now as the articles have been abrogated the provisions which violated the rights of citizens will be reinstated thus giving equal opportunity to other people and thereby paving its way for the growth and advancement in the valley and bringing it under the ambit of the Union Parliament. The parliament can freely legislate on all matters and the people can buy properties, apply for state jobs and can contest as well as vote in the general assembly elections, can gain advantage of the scholarships and healthcare facilities thus bringing it in consonance with the country and the other states. It is a progressive step and will provide ample amount of opportunities to the people residing inside and outside of the valley and will strengthen the economy.

JUDICIAL PRONOUNCEMENTS

            After the abrogation of 370 the centre disconnected the entire population of Kashmir from internet and telecommunication and Section 144 orders were imposed in the valley. Many petitions were filed before the Supreme Court relating to the shutdown of internet and imposition of 144 and on 10 Jan 2020 after five months from the removal of 370 from Kashmir the Supreme Court gave its judgement by a three constitution bench headed by Justice N.V. Ramana along with Justice B.R. Gavai and R. Subash Reddy that indefinite internet ban by state is not permissible under our constitution and is abuse of power and said that imposition of Section 144 cannot be used as a mechanism to avoid genuine protests which are allowed by our constitution. Section 144 have very specific parameters and only if those are satisfied can the magistrate pass the order and the repetitive orders under 144 of CrPC would be considered as an abuse of power. It said that internet shutdown needs to be reviewed by the authority and indefinite shutdown is unconstitutional as Internet is a fundamental part under Freedom of Speech and Expression and Right to free movement guaranteed under Article 19 of the constitution.

            The decision of the centre to shut down the internet and communication for more than five months was highly unacceptable and should be condemned by all. The people in the valley could not communicate with their family, relatives and friends. This is a complete ambush on democracy and rights of the citizens under article 19 and 21 of the constitution. Imposition of section 144 for so many days was violative to the people’s right to protest peacefully without any violence or chaos.

            The other case on abrogation of Article 370 in J&K questioned the legality of the decision. A constitution bench headed by Justice N.V. Ramana was constituted along with Justice SK Kaul, R Subash Reddy, B.R Gavai and Surya Kant who heard 23 petitions which were filed in the apex court which questioned the government’s decision of August 5^th 2019. It challenged the constitutionality of the decision. The petitioners argued that the government’s decision of dividing the state into two Union Territories Jammu and Kashmir and Ladakh is unconstitutional and that this is violating democracy, federalism and fundamental rights and it is done against the people of J&K. The argument by Dinesh Drivedi on behalf of Prem Shankar Jha is a limited argument in which he has claimed that this matter needs to be referred to a larger bench in SC. Apart from this he argued that Article 370 was supposed to be temporary till J&K makes its own constitution which was framed in 1957 after which the constituent assembly dissolved. After that the government cannot do anything and what the government did was completely illegal.

            Apart from the abrogation of 370, the government also repealed the constitution of J&K along with the constituent assembly which were considered to have a status of primacy as referred in the Prem Nath Kaul case of 1957 and therefore it is not possible for the Indian government to repeal it. The argument made by the centre government was that the sovereignty of J&K by 370 was Temporary. Also, there are many petitions challenging the reorganization of J&K on the grounds that the state has been downgraded and violative to Federalism and that the requirements under Article 3 are not fulfilled. The parliament has to get views of the legislature of the state for whom they are changing the dynamics of the state and was not happened. The decision regarding the constitutionality and the new reorganization is yet to come as the SC will keep hearing the matter further.

            The Constitution Bench on its judgement declined the plea of referring the matter to larger bench and said that it will continue to hear the case. The petitioners asked for a larger bench of either seven or nine judges on the ground that the two judgements of Supreme Court- Prem Nath Kaul V. J&K in 1959 and Sampat Prakash V. J&K in 1970 were in direct conflict with each other and the current five judge bench cannot hear the issue. The Attorney General Mr. K.K. Venugopal told the five-judge bench that both the cases dealt with different issues. The SC on March 2^nd 2020 said that there is no irreconcilable conflict between the two judgements and it will continue hearing the matter further.

            Now what the Supreme Court will give judgement regarding the constitutionality of the revocation of the articles is yet to be seen but the shutting down of internet and telecommunication along with imposition of 144 was abuse of power as correctly said the court and should be highly condemned. It was very authoritative and oppressive move by the central government and it failed to take in account the situation of the local people residing in the valley who have been living there under those provisions for years and suddenly after the removal of the articles they weren’t allowed to leave their houses due to the imposition of Section 1444 of CrPC and without communication and internet which are basic amenities to human in today’s world and keeping the politicians of the valley under houses arrest. This is unconstitutional and against democracy and is complete despotism.

PEOPLE’S RESPONSE

            After the government abrogated Article 370 in J&K opinions regarding the decision started blowing. The Kashmiris living in the valley were highly disappointed by the central government and claimed that abrogation of 370 has cut their wings off. Some claimed that J&K was chosen because it was Muslim majority state and this decision of the government is based on religion and is violative to the idea of secularism as stated in our Preamble. They could not protest, as the internet and communication were shut along with restrictions on the movement. They have said that hundreds of young men were detained by the police. They had constant fear of speaking against the government.

            Special status was the bridge between India and Kashmir and now it has been broken. The government made the decision without considering the views of the people living in the valley. Some people said that the government should come and talk to them instead of sitting in Delhi. These are some opinions of the native people which were covered in the newspapers and it apprises us with the views and psyche of the resident in the valley.

            Generally, the people in the valley were not happy with the decision. They stated that they are imprisoned by the Indian government. They will not sell their properties and want peace and no interference by the government. They think they are being pushed to the medieval times where the king used to invade the territory and siege them until they kneel down and this being a barbaric act and extreme control by the state over its subjects. They need to win our hearts if they want to integrate us with India not by deploying troops and shutting down communications and internet. This is not a normal life in this modern world. However, Union Minister Prakash Javadekar after two months since the removal of Special Status of J&K asserted that situation in J&K is normal and people are happy with the decision of the government and can now avail benefits on par with the rest citizens of the country. He also contended that there is no restriction on media and newspapers are published in the valley. Governor of J&K Satyapal Malik promised 50.000 new jobs and employment opportunities thus proving the stance of the central government that removal of 370 will create opportunities and reduce terrorism in the region. The opinion regarding the removal is mixed. Some supports it as being progressive while some say it is an ambush on constitution and democracy. After the removal of 370 Aam Aadmi Party supported the Centre’s move and Arvind Kejriwal tweeted this will bring peace and development in the state. YSR Congress extended the support to the government and praised the courageous move by the Home Minister Mr. Amit Shah. Bahujan Samaj Party appreciated the move of the central government and extended it support regarding the removal and bifurcation of the state. Biju Janata Dal, Telegu Desam Party, AIADMK, Shiv Sena were amongst other parties who backed the Centre’s move. Shiv Sena called it Independence in true sense. But Congress, Trinamool Congress, National Conference, People’s Democratic Party, Janata Dal (United), DMK etc. criticized the central government and openly castigated the decision. Congress said it is a black day in the constitutional history of India. It will increase terrorism and diminish development. Congress leader Kapil Sibal said that congress won Kashmir however the ruling government lost it. Omar Abdullah called it betrayal of trust.

            Trinamool Congress asserted that it is an assault on India’s federalism. RJD and CPM stated that it is Palestine in making. DMK President called it Murder of Democracy. Two PDP’s MP tried to rip apart the constitution. The international community reacted to these developments however Indian government had a firm stand on this stating that this is an internal matter of the country which will boost development and improve governance in the state. Pakistan condemned Indian government and tried seeking support from other community and its allies and mostly to the Islamic countries. Pakistan never recognized J&K as part of India but always considered it as a disputed territory. Surprisingly UAE did not support Pakistan’s claim instead asserted that it is an internal matter solely aimed for good governance. Donald Trump contended to mediate between India and Pakistan and said that Prime Minister Narendra Modi asked him to mediate the Kashmir issue which was nullified by the Indian government and USA took its stance back and said it is an internal matter and should be resolved by the two countries bilaterally. The issue of Kashmir reached United Nation Security Council sought by Pakistan and was backed by China for open discussion on the matter but the other fifteen members were not in favor of this. UN Security Chief Antonio Guterres said this is an internal matter and need to be resolved bilaterally and with peace. China called it unacceptable to bifurcate the state and make Ladakh a Union Territory. However, USA, UAE and Sri Lanka backed India’s move.

JAMMU AND KASHMIR REORGANISATION ACT, 2019

            Home Minister Amit Shah introduced two bills and two resolutions in the parliament regarding Jammu and Kashmir. Constitution (Application to Jammu and Kashmir), Order 2019 which was issued by the president of India to supersede the 1954 order. The Resolution for Repeal of Article 370 of the Constitution of India. The Jammu and Kashmir (Reorganization) Bill, 2019 and the Jammu and Kashmir Reservation (2^nd Amendment) Bill, 2019^[3] were presented in the parliament. The president used his power under 370 and changed the provisions of 370 and extended the provisions of the central laws in the state. On August 9^th 2019 The Jammu and Kashmir (Reorganization) Bill, 2019 received the assent of the President which bifurcated the state into two Union Territories Jammu and Kashmir and Ladakh which came into effect on 31^st October 2019. The Union Territory of J&K will have Legislature like we have in Delhi and Puducherry whereas Ladakh will not have any legislature like the rest UT’s if the country. The UT of Ladakh have two districts Kargil and Leh while the rest of the districts will be under the UT of Jammu and Kashmir. The Union Territories will have Lieutenant-Governors appointed by the President of India. Earlier J&K has special status and autonomy and most central laws were not applicable in the state unless the state’s legislative assembly approves them. Now the state is bifurcated into Union Territory which means more control by the central government as the UT’s are directly administered by the Lieutenant-Governor who acts directly for the President. So now the local bureaucracy or the police are under the direct control of the Home Ministry unlike the States in which these are under the state legislature. The centre appointed R.K. Mathur the former Defense Secretary as the first Lieutenant-Governor of the UT and G.C. Murmu the former principal secretary of PM Narendra Modi as the LG of J&K. The UT of J&K will have a legislative assembly in accordance with Article 239A that is the Puducherry Model and will have a term of five years and 107 seats in total but 24 will remain symbolically vacant as they under the Pakistan Occupied Kashmir (POK) so only the 83 will have elected members. There will be reservations in the Assembly for Scheduled Castes and Scheduled Tribes as they are in the rest of India. The assembly will frame laws on the State and Concurrent List like the UT’s are allowed. So, the assembly cannot make laws on public order, police, trade etc. to avoid conflicts. The Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC) will be applicable within the state thus replacing the erstwhile Ranbir Penal Code and J&K CrPC. The personal laws and the transfer of property laws will be applicable within the state. The 2005 Hindu Succession Act amendments will be applicable which gave women equal inheritance rights. The central Right to Information will be applied superseding the 2009 RTI law of the state. However, the constitutionality of the decision and the new reorganization is challenged in the SC and the decision is yet to come. So as of now India has two extra Union Territories and one less state.

CONCLUSION

            This research paper concludes the hypothesis that the abrogation of Article 370 and 35A is a progressive step and was necessary for the growth and advancement of the region as well as for the whole country. However, the indefinite shutdown of internet and communication was abuse of power and highly unconstitutional on the part of the central government. The laid objectives are dealt holistically under the different chapters along with the authors assumptions and assertions. The fact that article 370 was violative to the constitution is proved with the help of the interpretations of the articles. The new changes after the revocation has been discussed which are now on par with the other states. The arguments by both supporting and defying the abrogation has been presented and it is clear that the abrogation was necessary. The central government’s move regarding the communication and internet is condemned along with the authors opinion which is concrete. The abrogation will create new opportunities for the people inside and outside the valley and will contribute in the economic advancement, growth and development of the region. The new Jammu and Kashmir Reorganization Act and the provisions are in accordance with the provisions of the other Union Territories. It can be seen as a step towards reducing the terrorism and militants in the valley as the region will now be directly administered by the central government through Lieutenant-Governor and all the central laws will be applicable in the state.

REFERENCES

• P. JAIN, Indian Constitutional Law (Lexis Nexis, 8^th edition., 2018)
• N. Shukla, Constitution of India (Eastern Book Company, 13^th edition., 2017)
• The Indian Express, Newspaper
• http://indianexpress.com
• http://www.hindu.com
• http://www.bbc.com
• http://economictimes.indiatimes.com
• http://www.indiatoday.com
• http://www.hindustantimes.com

[1] Prince Philip of England.

[2] http://commonslibrary.parliament.uk/world-affairs/asia/kashmir-the-effects-of-revoking-article-370/.

[3] http://timesofindia.indiatimes.com http://www.prsindia.org http://www.thehindu.com.

Authored By:

MIMANSHA DURGAPAL

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7