With a historical and controversial resolution passed in Rajya Sabha, Article 370 annexed with Article 35 A of the Indian Constitution which confers special status to the state of Jammu &Kashmir has been repealed. The NDA government through the Minister of Home Affairs Mr. Amit Shah also introduced a bill that removes the statehood and bifurcates Jammu & Kashmir and makes J&K with a legislature and Ladakh without a legislature as separate Union Territories which was passed with 125 votes in support and 61 votes against it. In totality, 4 different bills had been moved and passed in the parliament which dealt with scrapping Article 370, Re-organisation of Jammu and Kashmir, providing reservation to economically backward classes and making Indian Penal Code,1860 effective in the place of existing Ranbir Penal code. As per the norms mentioned in the Constitution of India, there is need for 2/3rd majority in the J&K legislature along with a gazette notification by the President to repeal Article 370. But as there was a fall of government in the month of June and no legislature being present at the moment, a presidential notification was issued to scrap the contentious Article.
As mentioned by Mr. Amit Shah during the Parliamentary debate, the pre-existing governments lacked the political will to abrogate Article 370 and it was used as a factor in vote bank politics. He said that this Article didn’t help in any way to the development of Kashmir and moreover resulted in discrimination against women. The Congress Parliamentarians Shashi Tharoor and Ghulam Nabi Azad opposed the contentions of Mr.Shah and described the events as a black spot and opined that the “India’s head” had been chopped off. They contended that the word given by the Government of India to the people and leaders of Kashmir had been broken because of the decisions taken by the NDA government. Surprisingly, the Aam Aadmi Party which is essentially against the BJP government extended it’s support in repealing Article 370 but six lawmakers from one of the government’s ally, Nitish Kumar’s JDU staged a walk out from Rajya Sabha showing their dissatisfaction towards such decision.
Article 35 A and Article 370: The History and Analysis
At the time of bifurcation of country, the British had given an option to all the princely states to join India or Pakistan or stay as an independent nation. All the princely states existing in the present territory of India except Junagadh, Hyderabad and Kashmir chose to join India. The state of Junagadh joined India following a plebiscite conducted in which 99% of the people’s choice was in favour of India. At this point in time the Kashmir kingdom chose to stay independent with certain serious contradictions existing such as a Hindu King ruling a Muslim majority state. Using these sensitive circumstances in Kashmir, the Pakistani Pakhtoon armed tribesmen invaded the Kashmir valley intending to take it into their hands. The then Kashmiri king Raja Hari Singh with no other option available sought for India’s help. India promised to help Kashmiri King, but on one condition- Kashmir being annexed to India through signing an Instrument of Accession. It was ultimately done in October 1947 and in further developments Sheikh Abdullah was declared as the Prime Minister of Kashmir with succour of Pandit Jawaharlal Nehru. Meanwhile, the Hyderabad’s Nizam wanted it to stay as an independent state. In light of territorial drawbacks which would occur with such genesis, the then Deputy Prime Minister and Home Minister Mr. Sardar Vallabhai Patel ordered for a police action named as “Operation Polo” in September 1948 which annexed the State of Hyderabad to Union of India.
In these situations, Article 370 of the Indian Constitution was drafted by Sheikh Abdullah in 1947 with an intent to maintain cordial relationship between the Centre and the Government of Jammu and Kashmir. The final draft of the Article was made by Gopalswami Ayyangar and it came into effect in 1949. Article 370 of the Indian Constitution imbibes the concept of Article 35A.
Article 35A of the Constitution came into force as per the presidential order issued in 1954. It is essentially different from a general parliamentary amendment whose assent is acquired from the parliamentarians under Article 368. This provision allows the legislature of Jammu and Kashmir to define who a permanent resident is and decide upon various special rights and grants available for such residents. The state of J&K considers those persons who were born before the year of 1911 or those people who own immovable property and residence legally for 10 years prior to the date of claiming citizenship or the emigrants and their descendents for two generations as permanent residents.
Article 370 is mentioned under part XXI of the Indian Constitution as a temporary provision which assures the autonomy of special status to the State of Jammu & Kashmir. This Article ensures that the J&K legislature’s agreement is necessary for the Parliament to make a legislation applicable in the state except in the matters of defence, finance, communication and foreign affairs. Hence, there will be different laws in the state relating to residency, ownership, penal code and fundamental rights. Conclusively, we can understand that except Article 1 and Article 370 including Article 35 A, no other provision of Indian Constitution is mandatorily applicable over the land of Kashmir.
Effects of Abrogation and Reorganisation
The main question which popped up everywhere after knowing the events happened relating to Jammu and Kashmir and Ladakh is what are all the changes going to occur in the region. The main effect upon the region would be the migration and property. After the reorganisation, any one from the territory of India will have an option to migrate and own the immovable property such as land in the valleys of Kashmir and Ladakh. The second essential effect would occur by quashing the practice of giving dual citizenship to the people of J&K. One of the most important changes is that the women and their children from now on would still have the state subject rights even if they are married to non-permanent citizens. Another change would be the application of central laws in the territories of J&K and Ladakh. The Central government will also have the power to deploy and control the police forces directly. It will also have the power to declare financial emergency under Article 360 of the Constitution. There will be no two flags from hereupon and the general elections will take place once in every five years. The reservation bill which was also passed along with the reorganisation bill will give reservation to the economically backward classes (EBC’s) up to a ceiling of 10%.
It would be very early to decide whether such decisions would help to integrate Jammu and Kashmir to the territory of India in ‘real sense’. Let the history decide whether such decision is momentous and let’s hope the government could cherish the idea of development of ‘Jannat’.