ABROGATION OF ARTICLE 370 OF THE INDIAN CONSTITUTION: AN ANALYTICAL STUDY

Abstract :

Indian Constitution is one of the formost efficient written Constitution that any country has ever produce. It is a mix of varied other Constitutions, the Constitution makers had to be very prudent while making the draft of the Constitution due to the range India contains inside. Every State in India is exclusive and has its own diversity. But the formost beautiful and therefore the most diverse and focus attracting State is within the Northern and of the country India. Article 370 talks about the special status that has been given to the State of Jammu and Kashmir.

This purpose of this paper is meant towards exploring a tons of puzzling questions, ranging from the history of Jammu and Kashmir, towards what was the necessity to include this Article what circumstances led to the introduction of this Article, why this Article has been a controversial subject, also this paper would and ending with the conclusion which can tell us that the existence of Article 370 should be supported or not, altogether Article 370would be dealt in every important aspect.

Keywords: Indian constitution, specific reference, legal dimensions, implications.

INTRODUCTION:

The present study is aimed to trace the method of federalization in India and the inclusion of special provisions for the Jammu and Kashmir state embodied in Article 370 of the constitution of India. Since Jammu and Kashmir presents a variant of the federal structure during which the Indian States were welded, this study is predicted to supply a perspective for the future evolution of the federal frames which the founding fathers of the constitution of India constructed.

In recent years there has been insistent emphasis on the popularity of sub-national diversities of India as components of the Indian federal system. The present study, which is concentrated on the analysis of the constitutional placement of Jammu and Kashmir within the Indian federal structure, as a sub-national identity, reveals much and can function as an indicator for any reconsideration of the federal relations the constitution of India embodies.



1. www.livelaw.com

2. The constitution of Jammu and Kashmir – Justice A.S. Anand


RESEARCH METHODOLOGY:

The study is doctrinal in nature and analytical in approach. The research will depend on both primary and secondary sources.

Primary Source: The primary sources used in this research include the Constitution of India, Precedents and Statutes. Various reports of Commission of India.

Secondary Source: The data will be gathered through different sources such as the internet, journals, Articles, Newspaper and Magazines.

RESEARCH HYPOTHESIS:

The abrogation of Article 370 of the Indian Constitution will improve the overall condition of society at large in Jammu and Kashmir if implemented effectively.

ARTICLE 370 OF INDIAN CONSTITUTION: AN OVERVIEW:

Article 370 of the Indian Constitution is the most controversial and contentious. Indian constitution deals with the special status given to the state of J&K.

J&K citizen have dual citizenship. Jammu and Kashmir national flag is different. Jammu and Kashmir legislature term is 6 years whereas its 5years for the states of India. The order of state of India are not valid in Jammu and Kashmir. Parliament of India may makes laws in extremely limited areas in terms of Jammu and Kashmir. In Jammu and Kashmir if a women’s marries a person of any other state of India, citizenship to the female ends. If a women marries a person in other Indian states she loses her citizenship whereas if any women marry a Pakistani she is going to be entitle to posses a citizenship of Jammu and Kashmir. Outsider cannot own a land in Jammu and Kashmir because of section 370 RTI does not apply on Jammu and Kashmir, RTE is not implemented, CBI doesn’t apply, Indian laws are not applicable. Shariah law is applicable to women in Kashmir. There are no rights to panchayat in Kashmir, minorities in Kashmir (Hindu, Sikh) doesn’t get 16% reservation. Indian parliament doesn’t have any major rights over Kashmir it can only control issue of defense, international relation and communication.

NATURE OF ARTICLE 370:

To understand the question of the basic principle of the constitution of India one should study the nature of this Article first. This Article was the political venture and used as a weapon by the politicians of Jammu and Kashmir. It has few of the fiscal implications:


3. www.indiankanoon.org

4. History of Kashmir – A.K.Noorani

Applicability: Union government with the consensus of the state govt. before applying all other law except the law related to defense, external affairs and communication. All the provision of the Indian Constitution is not applied on the state Jammu and Kashmir like the whole Part VI does not apply to Jammu and Kashmir.

Jurisdiction: Parliamentary Jurisdiction is confined to Union and Concurrent list only. The State list does not apply to the valley. In context to the other states, the residuary power lays in the hand of Parliament whereas the Jammu and Kashmir residuary power is governed by the legislature of the state.

Fundamental Right and DPSP are inapplicable on the State of Jammu and Kashmir.

Any amendment, modification or deletion under Article 368 does not apply to the J & K. The Center has no power to amend the Constitution of Jammu and Kashmir.

The high court of Jammu and Kashmir has limited jurisdiction and cannot declare any law unconstitutional.

FACTS BEHIND THE ARTICLE 370 OF THE INDIAN CONSTITUTION:

Article 370 of the Indian Constitution is the temporary and special provision accorded for the state of Jammu and Kashmir. The principal drafter of the constitution of India refused to frame the Article 370 because this article was unconstitutional according to him. At the time of collective princely states were reorganized provisions of the omitted Article 238 did not apply to the State of Jammu and Kashmir. Article 370 is drafter under Part XXI ‘the Temporary and Transitional Provision’ of the Constitution of India. The Instrument of accession is the original draft of the Article 370 and under that it was defined that "the Government of the State means the person for the time being recognized by the President because the Maharaja of Jammu and Kashmir working on the recommendation of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March 1948. As per this Article before taking any important steps parliament has to look for the concurrence of the Government of the state. Parliament of India cannot reduce or exceed the borders of the state. Article 370 was renumbered at the place to Article 306A of the Indian Constitution. Non-residents do not have permission to transect the land deals in the Jurisdiction of the J & K as provided under Article 370. The Union cannot interfere in the provision provided in the Constitution of Jammu and Kashmir.

PROBLEMS:

Only a permanent resident can buy land in the state and citizens from other Indian other state face some restrictions. It is not easy for outsider to operate their businesses here. This help local resident in making more profit. It also reduces competition. Outsider is not allow to make any kind of construction in J&K which contains prices of real estate if Article 370 is remove than the prices of property will go very high. i.e. a normal home which now cost RS70lakh will then cost Rs1crore approximately.

PROS:

• It has preserve and protect the ecology environment and biodiversity in J&K to some extent.

• Government jobs are still available to residence of J&K.

• Local brands are still running here due to less competition.

• Maintains the status of J&K with union of India

• Less crime rate and traffic but terrorist is high which is the main negative issue.

CONS:

• Lack of medical facilities, no single private hospital in Jammu which include adjoining districts.

• Terrorism in state is because of 370 and because Pakistan claims over Kashmir.

• Lack of basic modern facilities like high speed internet, 24 hours electricity and 24 hours of water supply.

• Less competition makes the progress of student slow and dull that means grow and development is low.

• No opportunity for state student to appear in other state exam.

• No industrial sector is available.

• Jammu is always ignores in comparison to Kashmir just because it’s an international issue.

• It has hindered the progress of our state to a large extent.

• Corruption is much more in J&K than from others because of special status and laws. Only Muslim can become chief minister of J&K, no Hindu can become chief minister of J&K.

• It has reduce the participation of non-Muslim community in politics and other fares.

WHAT IS ARTICLE 35A INCULCATED IN THE LEGAL PROVISIONS OF J & K?

This Article was inserted for providing the special status to the residents of the Jammu and Kashmir. This Article was inserted on the recommendation of President Rajendra Prasad with the concurrence of Jawaharlal Nehru. Article 35 A is a blessing to the people of Jammu and Kashmir and can only be enjoyed by residents of the valley.


5. India: News New Delhi

6. www.lrgallyindia.com

LEGAL IMPLICATIONS OF ABROGATION OF Article 370 OF THE INDIAN CONSTITUTION

Article 370 was inserted during the political turmoil and the war between Kashmir and Pakistan. Initiation of the Article was when the Instrument of Accession was signed between Kashmir and the government of India. As per this Article special provision was promised to be given to Jammu and Kashmir. To fulfil such agreement Article 370 came into existence and the drafting of this Article was initiated.

 Inequality

 Temporary and transitional provision

 Overrules section 5 of the instrument of accession

 Stimulates separationalists

 Finance development

 Corruption

 Security at stake

 Discrimination: The rights provided to women differ as compared to the rights of the men in the state of Jammu and Kashmir.

LATEST BILL: JAMMU AND KASHMIR REORGANISATION BILL 2019

This act has been passed after the Presidential Order of deleting Article 370. This bill was passed to divide the Jammu and Kashmir and Ladakh into two separate Union Territories. The region Jammu and Kashmir are always at target whenever there is any insurgency situation between India and Pakistan. This Act will come into effect from the date 31st October 2019. This Act was inaugurated by the Minister of Home Affairs Amit Shah on 5th August 2019. The bill was passed with the help of the majority voting in both the houses of Parliament. In the Rajya Sabha when this bill was presented and owns of voting were in the hands of members of the house, 125 members were in the favor. The president of India also gave his prestigious consensus on 9th August 2019 in the favor of passing such a bill. The bill was set in motion through Presidential Order and with the effect of which Article 370 was eradicated from the Indian Constitution. As Article 370 was depleted Union Government passed the Reorganization bill which helped them to pave the way to alter with the boundaries of the Jammu and Kashmir and Ladakh.

Features: As per this Act Jammu and Kashmir will have a legislative Assembly. Ladakh will not have any Legislative assembly and will be governed by lieutenant Governor only.

1) Leh and Kargil will not be the part of Jammu and Kashmir anymore and will be merged with Ladakh territory.

2) All the other districts, villages or states will remain inculcated in Jammu and Kashmir.

3) Allocation of Lok Sabha seats is also decided in this Act which specifies that five seats out six will be allotted to Jammu and Kashmir and one to Ladakh for the representation of Lok Sabha in the house of Parliament.

4) The Election process will be the same as prescribed in the delimitation Act.

5) Legislative Assembly of Jammu and Kashmir will last for 5 years

6) Article 239a will be enforceable on Jammu and Kashmir as Puducherry.

7) Legislative Assembly seats are also escalated from 107 to 111, 37 of Jammu and 46 of Kashmir and 4 of Ladakh.

8) SC/ST will get a reservation.

9) The High Court of both UTs will be the same


Research Question:

 Is there a need for revoke the citizenship of J&K if the women marry in other states, Why can’t revoke if marry in Pakistan?

 Why outsiders not buy the land in Jammu and Kashmir?

 Why Jammu and Kashmir have dual citizenship and different flag?

 Why legislative assembly term is 6 years?

 Why the special status has been given to Jammu and Kashmir?

RESULTS COMPLETELY NEW UNFOLDED OPPORTUNITIES FOR J&K:

Total revolution or transformation in the Jammu and Kashmir witnessed after the extermination of Article 370

1. More Development and investment

Earlier: curtailment inflicted on land transfer due to applicability of Article 370 and Article 35 A. There were obligations which stop industrial growth and setting up large industries. The areas of education, tourism, and health were completely ignored by the government.


7. Reports of the Drafting Committee, Jammu and Kashmir Constituent Assembly, 1956.


Present Situation: elimination of such provisions will hike the private and industrial sectors. There will be magnification and prosperity among the state if industrialization enters. Revolutionary change can be seen by increasing trade and commerce, tourism, and educational opportunities. Local farmers can learn new cultivation techniques and women can learn to run small scale businesses at home which will boost up their confidence and enthusiasm.

2. Tourism

Earlier: Jammu and Kashmir is the heaven of India and there is the immense number of tourist who wishes to visit this place but the problem is the legal implications on the state due to Article 370 and Article 35A. This dematerializes the capability of the State to become topmost tourism ventures in the nation.

Present Situation: thickening the investment in the tourism of State which will enhance the financial condition and development. Film shootings, adventure sports and job opportunities will shoot up. Village or rural tourism will expand in peaceful circumstances.

3.Health and Education sector

Earlier: lack of educational opportunities degrade the future of youngsters. The limited scope of higher education is becoming a ban for the children studying in the Jammu and Kashmir. All across the nation higher education is at heights and nurturing the future of the youth if due to restricted provisions proficient professors or schools can be provided to the State.

Present Situation: PPP model strides the State towards a completely developed State by constructing private schools, colleges, and large private hospitals. This will surge the job opportunities for residents near doorsteps.

4. Basic Rights:

Earlier: No RTE or property rights were deliverable to the people of the State. Women were facing discrimination and many children were deprived of education facilities. Right to Education was not the crucial right in the Jammu and Kashmir. Women were no more authorized to property rights if she marries other men outside State..

Present situation: Women can reap the benefit of property rights irrespective of the places where they marry. Children can avail themselves of the Right to Education which provides free education to children from the age of 8 to 14 years. Juvenile Justice Act will apply to the residents of the State.

5. Property Rights:

Earlier: Only permanent residents could avail of property or land ownership rights. Due to this reason, there was no hike in the prices of the land in the State as compared to other states. Non-residents cannot claim for any land or property in the valley.

Present Situation: land ownership will vary after the abrogation of Article 370. No one will be forced to part their land after this event of deleting the special status of Jammu and Kashmir. but landowners who wish to buy or sell land are free to do so.

CONCLUSION :

This decision was declared in such a short period that it was like flash news for the Nation. The people of Kashmir were in shock. No doubt it is for the development of peace and order in Jammu and Kashmir but the government should have taken such big move slowly and gradually. They should have educated the locals about their decisions and the disadvantages of Article 370 as it hinders the growth and development of their State. The confidence of the people should be gained first. The government has imposed the barriers for the Media which was a violation of Article 19 i.e. Right to speech and expression. This has hindered media to represent the true side of the story. There are many concerns of the locals which should be resolved like high-speed internet facilities which are becoming a hurdle to get healthcare prerequisites and online education from their respective educational institutions. The involvement of the media would have to Enlighten the issue in a positive direction when the locals have seen the love and support they would get from outside their state.

The hope is that the fine combination of Muslims (Kashmiris - One Divine Wisdom) and Buddhists (Ladakh from Tibet University - Lhasa) gives us a unique culture and scope of advanced future enhancements to reshape the unstable country’s situations in peaceful, enlightened and advanced development under the umbrella of Indian Constitution.

REFERENCE:

www.livelaw.com

www.indiankanoon.com

www.legalyindia.org

The constitution of Jammu and Kashmir – Justice A.S.Anand

History of Kashmir – A.K.Noorani

Reports of Drafting Committee, Srinagar, Jammu and Kashmir Constituent Assemby,1956.


CREDIT: VIBHASHINI.S.D

CLG : SCHOOL OF EXCELLENCE IN LAW


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