Contentions by Deepanshu Jain
Home Minister Mr. Amit Shah on Monday 5th August, 2019 on the advice of Honourable President of India Introduced Bills in Rajya Sabha for Revocation of Article 370 and Article 35A, which grants special status to State of Jammu and Kashmir. Starting from history of Article 370 and 35A to the present situation a lot have to be discussed. Both Articles have a huge history. After the Formation of Modi Government in 2019 at Central the 1st Session of Parliament in ongoing, this extended session had already passed more than 14 Bills and today Four new Bills were introduced Two of them were to Scrap Article 370 and Article 35A. The BJP has been opposing the Special Status of J&K from a long time. It had claimed that it could not Repeal Article 370 during the Government of Mr. Atal Bihari Vajpayee due to lack of majority in the Lok Sabha, BJP has been opposing it since Jan Sangh Days. In the manifesto of 2014’s election one of the party’s Agenda was: Return of Kashmiri Pandits to the land of their ancestors with full dignity, security and assured livelihood.
The decision of Government to Repeal Article 370 amd Article 35A was not unexpected one, since last month many visits of Defence Minister, Army Chief and meetings headed by NSA chief had taken place along with deployment of more than 10,000 troops among 100 companies of CRPF, BSF and ITBP. Various measures had been taken to maintain Law and Order in Valley as presumptions were made that their will be internal disturbance as a result of Revocation of Article 370 and Article 35A. Due to this in Kashmir Section 144 of CrPC imposed in several areas. On night of August 4th, 2019 orders were passed by the District Magistrate to impose section 144 from Morning 6 A.M. 5th August, 2019. The Mobile phone and Internet Services are shutdown and Three Ex Cm’s of State of J&K were under House arrest as they were asking all political parties to come along as one unit against this step of Central government.
What Is Article 370?
Article 370 of the Indian constitution was an article that gives special status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution which provide Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. The provision of Article 238 which was omitted from the constitution in 1956 when Indian states were reorganised, shall not apply to State of Jammu and Kashmir. All provisions of constitution which are applicable to other states are not applicable to State of J&K unless adopted by the state.
The Provisions of Article 370 was to be drafted by Sheikh Abdullah (the then Prime minister of J&K appointed by Maharaja Hari Singh and Jawahar Lal Nehru) on the consultation of Mr. Bhem Rao Ambedkar (then law Minister) on the directions of Mr. Jawaharlal Nehru in 1947. Sheikh Abdullah wanted “iron clad” autonomous status for state and also Article 370 should not be placed under “temporary provisions”. Eventually Article 370 was drafted by Gopalaswami Ayyangar. He was Minister without portfolio in the first union cabinet of India. He was also a former Diwan to Maharaja Hari Singh of Jammu and Kashmir.
The original draft explained “the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948”. On November 15, 1952, it was changed to “the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office”.
According to this article the matters subject to defence, foreign affairs, finance and communications the Parliament need Government’s concurrence to apply other Laws. Maharaja Hari Singh signed J&K Instrument of Accession on 27th October 1947. In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir made a series of orders, namely as Presidential Order of 1950, Presidential Order of 1952, Presidential Order of 1954. In addition to these original orders, Forty seven Presidential orders have been issued between 1956 and 1994, making various other provisions of the Constitution of India applicable to State of Jammu and Kashmir. All these orders were issued with the concurrence of the Government of the State without any Constituent Assembly. The effect of these orders has extended 94 to 97 subjects in the Union List, and 260 of the 395 Articles of the Constitution of India. When the State’s constituent assembly dissolved itself on 25 January, 1957 without recommending either abrogation or amendment of the Article 370. Till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister. Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.
Various Indian Laws which applies to State of J&K are as follows: Following are the laws which had been extended to State from time to time and as per need:-
- Negotiable Instrument Act, 1881
- All India service Act, 1951
- Essential Commodities Act, 1955
- The Central Laws (Extension To Jammu And Kashmir) Act, 1956
- Haj Committee Act, 1959
- Income Tax Act, 1961
- Central Vigilance Commission Act, 1964
- The Central Laws (Extension To Jammu And Kashmir) Act, 1968
- Border Security Force Act, 1968
- Central Goods and Services Act, 2017
- Integrated Goods and Services Act, 2017
The Residents of State of J&K were governed under separate set of Laws which include Citizenship, ownership of property and fundamental rights. Previously the residents of State of J&K have posses to Dual citizenship, one of State of J&K other of Union of India. On the other hand the residents are not allowed to sell/transfer their property to Non-residential person. Because of Article 370 the Central Government can declare Emergency only on ground of War and External Aggression but not because of Internal Disturbance or Imminent Danger unless it is made with request or with concurrence of State Government of J&K.
From the day the order is Signed by the Honourable President of India and from the day Order is added in the Gazette of India, the whole of Indian Constitution is applicable in the Two new UTs : Jammu and Kashmir and the Ladakh. Jammu and Kashmir will be 8th Union Territory with Legislature while on the other hand Ladakh will 9th Union Territory with Legislator.
What is Article 35A?
Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.
Prior to 1947, Jammu and Kashmir was a Princely state under the British Paramountcy. The people of the princely states were “state subjects”, not British colonial subjects. When the J&K Constitution was adopted in 1956, it defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has lawfully acquired immovable property. So under this clause no outsider can own property in J&K or get a state job.
Text to Article 35(a) in The Constitution Of India
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws
(i) with respect to any of the matters which under clause ( 3 ) of Article 16, clause ( 3 ) of Article 32, Article 33 and Article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub clause (ii).
What is Section 144 CrPC?
Section 144 of the Code of Criminal Procedure (CrPC) is issued in urgent cases of security threat or riot and bars the assembly of five or more people in an area where it has been imposed. The notification is issued by the District Magistrate of the area. The section also empowers the authorities to block internet access. According order issued by the government, “there shall be no movement of public”. When there are threat of breach of public peace or internal disturbance, Section 144 CrPC is put into effect. Under this section, all civilians are barred from carrying of weapons including lathis, sharp-edged weapons or firearms in public places except for police or paramilitary or security forces. This section can be imposed not more than 2 months. However, if the state government considers it necessary for preventing danger to human life or for preventing a riot, this particular section can also be extended up-to Six months from the initial date of order. The punishment for unlawful assembly is up-to three years.
Big victory for whole of Nation. This move will significantly remove terrorism and truly unite Indians with Kashmiris. Now after the revocation of Article 370 and Article 35A, we the people of India can say that from “Kashmir to Kanyakumari” India is One.
Contentions by Aayush Akar
Modi Government took the most valiant decision in the 70 years of the history of Republic of India to remove the contentious provision of Article 370 from the Constitution of world’s largest democracy. As per Article 370, state of Jammu & Kashmir will have its own Constitution and Indian Constitution will have no application in the state except two provisions of Article 1 and 370. The Ministry of Law and Justice issued a notification titled The Constitution (Application To Jammu And Kashmir) Order, 2019 overriding the Order of 1954 and removed Article 370 of Indian Constitution.
Raja Hari Singh was the Hindu ruler of Muslim majority princely state of Kashmir. When India got independence from Britishers, the Hindu ruler determined to remain independent and remained neutral with India and Pakistan. However, when Pakistan supported invasion of Kashmir through incursion of its army and local tribal people, Maharaja altered his mind and decided to take aid of India. On 26 October 1947, he signed the instrument of accession with Dominion of India in return of military aid. The present situation of Kashmir is turmoil as heaven of earth is under the control of both India and Pakistan.
What is Article 370?
Article 370 of the Indian Constitution gave special autonomous power to the state of Jammu and Kashmir. It is a ‘temporary provision’ under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special Provisions.” It states that all the provisions of the Constitution which gave power to central government would be applicable in the valley only after the consensus of state legislative assembly. This temporary provision was made till the adoption of state Constitution but unfortunately the legislature itself dissolved without any amendment to the Article 370.
In 2018, Kumari Vijayalakshmi Jha vs Union of India & Anr, 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 Supreme Court gave the same ruling of permanent feature. India needs Jammu & Kashmir government’s nod for applying laws in the state except in the case of defence, foreign affairs, finance, and communications. The laws of state in case of fundamental rights, property and citizenship is totally different from the rest of India. The concurrence was only provisional as ratification of Constituent Assembly is required. This Article can only be scrapped after the ratification of State Constituent Assembly. The state has full legitimate power to make laws in relation to welfare measure, cultural measures, personal law and procedural law.
Power of President and Scrapping Off of Article 370
As per Article 370, the President has power to apply other provisions of the Constitution subject to certain modifications as President by order may specify due to Article 370. He can’t issue any order without the consent of state legislature.
The President issued The Constitution (Application to Jammu and Kashmir) Order, 2019 which superseded the Constitution (Application to Jammu and Kashmir) Order, 1954. The person recognized by the President of India on the advice of State Legislative Assembly will be now known as Governor of Jammu and Kashmir which formally referred as Sadar-i-Riyasat of Jammu and Kashmir. It added clause in Article 367 which now states that Constituent Assembly is now State Legislative Assembly. The Constitution of state is now referred as Constitution only. The Government of the valley will include Governor acting on the advice of Council of Ministers.
As per Article 370(3), the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.Since June 2018, under Article 92 of the Constitution of Jammu and Kashmir, the valley was under Governor’s rule as BJP ended its coalition with PDP. After 6 months in December 2018, the state was under President Rule which is Article 356 of Indian Constitution. It implies that power of state government means power of Central government. It means the Government wrote an order to itself for “concurrence” and President signed the order.
Legal Challenges To President Order
The President has overreached his power entrusted to him under Article 370(1)(d). Article 370 is basically a temporary provision which was added to integrate Jammu and Kashmir into Union of India. Only two Articles i.e. Article 370(1)(c) and 370(1)(d) deals with application of Indian Constitution into the valley. Article 370(1)(c) states that Article 1 and this Article 370 shall be applicable to the state. Article 370(1)(d) states that President may by order specify that other provisions of Constitution will be applied in the state with such “modifications”.
As per Article 370(1)(d), President is required to take concurrence of Jammu & Kashmir Government before issuing such notification. Similarly Article 370(3) requires the recommendation of Jammu & Kashmir Constituent Assembly if President declares whole Article 370 inoperative. Since the concurrence of Jammu & Kashmir Government is required but the Legislature is dissolved and was under President Rule, this was effectively dispensed with. The Government has cleverly interpreted Jammu & Kashmir Constituent Assembly as Jammu & Kashmir Legislative Assembly so that Jammu & Kashmir Legislative Assembly can abrogate Article 370 which was not done by Constituent Assembly. The President has overreached its power what is defined in Article 370 as per Keshavandana Bharti Case, the Constitution heads cannot use the powers to do what Constitution has never meant.
The matter of special status of Jammu & Kashmir was a debatable throughout the 70 years of independence of the country. Because of this special status Kashmiri people have no feeling of nationalism as separatists continues to create violence in the valley and asserted people that they are not part of India. This is a fallacy as per Article 3 of the Constitution of Jammu & Kashmir, the state is an integral part of India. The valley which is described as heaven of earth has no investment or industrial development because of terrorism which has created fear among investors. Hence, it can be said that removal of Article 370 can bring peace and order in the state and can bring feeling of nationalism among Kashmiri people.