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Abrogation of Article 370 and Article 35A

Written by Saumya Kapoor

Class 11, Vivek High School, Chandigarh


Source: Ground Xero



Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Abstract


Article 370 of the Indian constitution has provided the state of Jammu and Kashmir with a special status. But with the National Democratic Alliance party (NDA) forming the government for the second consecutive term, one of the points in its manifesto was to scrap Article 370, and the government has proved to stand on its vows.[1] In recent times there has been an uproar of the abrogation of the article and this step by the government has been seen as death of democracy with them curbing freedom of speech and expression. The author will be dealing with the present situation of Jammu and Kashmir post the abrogation of Article 370. This has led to various protests in the state, violation of fundamental rights of citizens and various debates on the validity of the decision. There have been various petitions in the Supreme Court regarding the matter; but were dismissed. The author seeks to analyze this contentious issue in the present article.

Keywords: Article 370, Article 35A, Abrogation, Protests, Instrument of Accession, Internet shutdown


Introduction


A special status was given to the state back in 1947 after India attained independence from British colonial rule and Maharaja of Jammu and Kashmir had to decide whether to merge with India or Pakistan and still maintain its sovereignty. A legal document, Instrument of Accession was signed by Maharaja Hari Singh, the then ruler of Jammu and Kashmir and Pandit Jawaharlal Nehru, first Prime Minister of independent India.

This document stated that the state of Jammu and Kashmir would be a part of India and only allow interference by Dominion of India in matters of defence, external affairs and communication under Article 10 A of the Ranbir Constitution.[2]

The Maharaja however, negotiated some of the conditions facilitating the merger and protected J & K’s sovereignty by having control over matters concerning the state such as ownership of property and citizenship etc.


This separate status was led by the birth of Article 370 and Article 35A as well as a separate constitution named “Ranbir” governing the state and a separate flag which the people of Jammu and Kashmir would associate themselves with. Some part of Jammu and Kashmir was forcefully occupied by Pakistan and China after various long drawn wars and border tensions,which is known as Pakistan Occupied Kashmir (POK) and the part of the territory under China called Aksai Chin. Since India shares its border with these countries , there have been tensions on the border which has led to strikes by India such as Uri, etc.


In spite of the separate status privilege, state of Jammu and Kashmir has been associated with India and Article 370 and Article 35A has been incorporated in the Part XXI of Indian Constitution and signified as temporary, special and transitional provisions.[3] For the longest time, citizens of Jammu and Kashmir have had a sense of identity and belongingness with the state while enjoying dual citizenship of being an Indian and citizen of Jammu and Kashmir. All this was taken away in a blink from them with the abrogation of Article 370 leading to many questions about the constitutionality of the decision as well as righteousness of it.


Scrapping Of Article 370


On 5th August, 2019, the NDA government proposed a bill before the Parliament to scrap Article 370 and Article 35A from the Indian Constitution. Prior to this, troops were set up in large numbers and Section 144 of Criminal Procedure Code was imposed which restrained 4 or more people to meet together and assemble to have discussions etc. and authorised internet blockade under Indian Telegraph Act and Information Technology Act. According to the provision, every member of such 'unlawful assembly' could be booked for engaging in rioting without any prior warrant. [4]

All this was in theory, the executive powers went unchecked in reality and Internet Service providers were instructed to suspend all operations in the State. A year before the Bill was introduced, BJP drew its support from the state government resulting in the fall of the government.


The government was a result of an alliance between PDP (Peoples Democratic Party) and BJP (Bharatiya Janata Party) .[5] The motto of scrapping Article 370 and 35A was to implement the National laws to the State and to make it an integral part of the mainland of India. The BJP-led National Democratic Alliance (NDA) enjoys an overwhelming majority in the lower house of the parliament since it came to power. The resolution to revoke Article 370 was passed with 351 votes in favour, 72 against and one member abstaining.[6]


The Bill was passed by Upper House through a voice vote and 125 were in favour while 61 were against.[7] “We are shocked by the decision and it left us disappointed because our sentiments were attached with this Article... its scrapping means that the State will lose its Muslim-majority character,” said 50-year-old Farooq Ahmad Shah, a resident of Srinagar who was visiting Jammu.[8]This decision was criticised as well as appreciated by the citizens. With this, mixed reaction started the events of violence and imposition of complete internet shutdown in the State as an attempt to curb the dissenting voices. Various petitions were filed claiming the decision to be unconstitutional. Presidential assent is essential for passing such a decision who has the power to revoke any changes to Article 370 via a public notification. With the support of Parliament, the article was scrapped in its entirety.


In Spite of the “temporary, transitional and special” provision, Article 370 and 35A was placed in an essence of permanency and could not be dissolved without the recommendation from the State assembly. But in the present scenario where the assembly was dissolved just before the public notification of abrogation without clear clarification, the foundation of democracy was questioned in various cases.[9]

Current Situation


Article 370 and 35A are no longer applicable to the State of Jammu and Kashmir. Local people didn’t expect this coming and were not ready to lose their identity and fundamental rights. On the night of 4th August, 2019 internet services were shut down and former Chief Ministers of Jammu and Kashmir, Mehbooba Mufti and Omar Abdullah were illegally detained at their houses. With effect from 15th August, 2019 it lost its status of state and was split into 2 new Union Territories. Ladakh being an U.T. with no legislative government whereas Jammu and Kashmir being an U.T. with a legislative government had come in effect from 31st October 2019.[10] August 2020 saw the first year anniversary of Kashmir without 370. A curfew was imposed on the area and troops were set up in large numbers.[11]


There were various petitions filed before the High Court and Supreme Court against the decision being invalid and ultra vires.

The dissent against the ambiguity of the decision was answered by the government claiming that all was well in the state and not allowing any news coverage from the area. Union ministers such as Ramesh Pokhriyal (Minister of Human Resource Development), Ravi Shankar Prasad (Minister of Law and Justice), Shripad Naik (Minister of State in the Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy and Minister of State for Defence) and Mukhtar Abbas Naqvi (Minister of Minority Affairs) visited Kashmir during the month of January 2020[12]. UN officials also visited the state after abolition of Article 370 and stated that everything was well in Kashmir.


Home minister gave a visit to the state and came out with the idea of an outreach programme. National Security Advisor Ajit Doval visited Kashmir in August last year. He was seen walking on the road, meeting locals and making them aware about the importance of scrapping it.


Many people who advocate the principle of federalism and respect for the basic structure of the constitution criticised the decision and claimed that it was a betrayal to democratic expectations of the people and negation of their fundamental right to freedom of speech and expression.


Illegal Detentions And Internet Shutdown


Besides the suit against the decision, there were many people raising concern over restrictions imposed on movement of the people and about 14 PILs were filed in this light. Moreover, several leaders like Mehbooba Mufti, Omar Abdullah and Farooq Abdullah were illegally detained at their homes without any proper justification and fair trial except by giving public statements of the step to preserve national security. The detention of former Jammu and Kashmir Chief Minister, Mehbooba Mufti was extended by three months under the stringent Public Safety Act[13]; hours before it was due to expire.


In a similar move, the detention of former minister and senior National Conference leader Ali Mohammed Sagar, and senior PDP leader and uncle of Mufti, Sartaj Madani, was also extended by another three months.[14] This detention took away their right of freedom of speech and expression. Several reporters were also detained who were covering the real issues and bringing ground reality to light.

Internet services were banned in Kashmir on the night of 4th August 2019 and have been shut down since then making it the longest shutdown of the internet in any democracy.

Government removed the ban in January 2020 by providing only 2GB of data after the Supreme Court instructed the authorities to review orders regarding the suspension of the internet in Anuradha Bhasin v. the Union of India[15]which explained principle of proportionality of the existing internet shutdowns and procedural safeguards making it mandatory to make the suspension of internet orders public as part of the procedure laid down under Telecom Suspension Rules[16], and under the judgement a committee was also directed to be set up to review the reality but with the political pressure, the judgement was slammed claiming it to be lacking substantive action and in the end there were no orders of restoring internet services .


The Supreme Court in this case, observed that the internet is a fundamental right under Article 19 (1) (a) of the Indian Constitution. Even after the removal of ban only basic facilities like sending messages on Whatsapp were resumed. Due to the slow speed of the internet , features like uploading videos, downloading files, submitting the assignments etc. have been nearly impossible. Even in preceding years internet shutdowns were imposed in the state but didn’t last for more than 133 days.

During COVID-19 lockdown when the nation was working from home costing various people’s jobs and education of many, citizens of J&K faced various problems which went unheard and creating a state of confusion and remorse.

Conclusion


Besides the rhetoric and controversial question of the decision being right and beneficial, the author believes otherwise about the decision. Many residents of Jammu and Kashmir believe that the scrapping was essential in developing the area and put an end to border tensions and confusion of identity. Now citizens from other parts of the country can buy property there and expand their business in that area. This will lead to the development of the state as well as of the nation. Citizens involved in political aspects however, claim that their identity is lost and often manifest to bring Article 370 and 35A back in order after winning elections. The author strongly believes that due to special status, countries like China and Pakistan were taking undue advantage and were spreading terrorism by tapping on the confusion of identity of the people after materially pursuing them to their side and ideals. The Kargil war and Uri attack are few examples of the tension created which occurred in the state leading to loss of lives and property. The author is of the opinion that it was essential to scrap Article 370 and 35A in order to give new direction to the state and to the nation. Hence the author supports the decision and thinks of it as being justified, constitutional in nature and citizens should respect the government’s decision and support it to benefit and grow the valley.


[1] Nishita Gupta, “BJP Manifesto, 2019”, ( last accessed on Oct.3, 2020, 7:40pm); https://www.indiatoday.in/elections/lok-sabha-2019/story/bjp-manifesto-2019-difference-congress-manifesto-nationalism-financial-stability-women-empowerment-1496986-2019-04-08 [2] Times of India, (2019); https://timesofindia.indiatimes.com/india/article-370-rewriting-both-the-history-and-geography-of-jk/articleshow/70546131.cms (last accessed on October 2, 2020, 9:22 pm) [3] India Today, (2019); https://www.indiatoday.in/news-analysis/story/kashmir-situation-article-370-history-1578495-2019-08-08, (last accessed on October 2, 2020, 9:30 pm) [4] “What is 144 Section”; https://www.business-standard.com/about/what-is-section-144, (last accessed on Oct.3, 2020, 7:44pm) [5]“BJP-PDP Split”; https://www.thequint.com/news/politics/bjp-pdp-alliance-split-timeline, (last accessed on Oct.3, 2020, 7:44pm) [6] “Lok Sabha Passes J&K Reorganisation Bill, Resolution to Revoke Article 370”; https://thewire.in/politics/jammu-and-kashmir-amit-shah-lok-sabha, (last accessed on Oct.,3,2020 7:45pm) [7]Swati Das“Rajya Saha passes Jammu and Kashmir reorganisation bill, 370 and 35A gets scrapped by; https://www.livemint.com/news/india/rajya-sabha-passes-jammu-and-kashmir-reorganisation-bill-scraps-articles-370-35a-1565011796209.html, (last accessed on Oct.3,2020 7:49pm) [8] The Hindu, “We have lost our identity says people of Jammu and Kashmir”; https://www.thehindu.com/news/national/we-have-lost-our-identity-say-people-of-kashmir-as-government-scraps-article-370/article28824520.ece, (last accessed on Oct.3, 2020, 7:51pm) [9] Sampat Prakash v. State of Jammu and Kashmir, 1969 AIR 1153 SCR (3) 574 [10] “Why Narendra govt scrap Article 370”; https://timesofindia.indiatimes.com/blogs/power-shaker/why-narendra-modi-govt-could-scrap-article-370/, (last accessed on Oct.3, 2020, 7:52pm) [11] The Economic Times, “Curfew imposed in kashmir ahead of first anniversary”; https://economictimes.indiatimes.com/news/politics-and-nation/curfew-imposed-across-kashmir-ahead-of-first-anniversary-of-revocation-of-article-370/articleshow/77343402.cms, (last accessed on Oct.3, 2020 7:53) [12] Times of India, “5 out of 36 union ministers to visit kashmir with the idea of outreach”; https://timesofindia.indiatimes.com/india/5-out-of-36-union-ministers-to-visit-kashmir-as-part-of-centres-jammu-and-kashmir-outreach-programme/articleshow/73429524.cms, (last accessed on Oct.3, 2020 ) [13] Jammu and Kashmir Public Safety Act, Act No. VI of 1978. [14] The HIndu, “The detention of mehbooba mufti and two other leaders”; https://www.thehindu.com/news/national/former-jk-chief-minister-mehbooba-muftis-detention-under-psa-extended-by-three-months/article31512206.ece, (last accessed on Oct.3, 2020, 7:57pm) [15] Anuradha Bhasin v. the Union of India, 2019 SCC OnLine SC 1725 (India) [16] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017

BIBLIOGRAPHY

  1. [1] Badri Raina, The Wire; https://thewire.in/rights/jammu-kashmir-article-370

  2. Spriha Srivastava, CNBC News; https://www.cnbc.com/2019/08/05/article-370-what-is-happening-in-kashmir-india-revokes-special-status.html

  3. Nusrat Sidiq, "A year of loss and fear"; https://kashmirreader.com/2020/08/05/a-year-of-loss-and-fear/

  4. Journalism in today’s Kashmir; https://www.newsclick.in/journalism-today-kashmir-communications-lockdown-8-computers-queues

  5. Niha Masih, Shams Irfan and Joanna Slater, "India’s Internet shutdown in Kashmir is the longest ever in a democracy" https://www.washingtonpost.com/world/asia_pacific/indias-internet-shutdown-in-kashmir-is-now-the-longest-ever-in-a-democracy/2019/12/15/bb0693ea-1dfc-11ea-977a-15a6710ed6da_story.html

  6. Regina Mihindukulasuriya, The Print; https://theprint.in/economy/internet-shutdowns-pandemic-have-cost-kashmir-rs-40000-cr-5-lakh-jobs-says-industry-head/474028/

  7. Internet Shutdown in Kashmir: Social and Legal Implications written by Vyshnavi Praveen, 1st Year, Tamil Nadu National Law University https://www.clawlegal.org/editorial/internet-shutdown-in-kashmir-social-and-legal-implications/

  8. NSA Ajit Doval's visit to Kashmir's Shopian sends strong message to those who predicted doom, gloom if Article 370 was revoked by Sanjay Singh https://www.firstpost.com/india/nsa-ajit-dovals-visit-to-kashmirs-shopian-sends-strong-message-to-those-who-predicted-doom-gloom-if-article-370-was-revoked-7127471.html

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