An Introspection of Article 370

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Reshna
Vishwas

Author: Reshna Suresh

Co-Author: Vishwas Raj

Manipal University Jaipur (LLB)


An Introspection of Article 370 abstract

The paper Discusses Article 370 of the Indian Constitution,Verdict on repealing article 370, the immediate cause for the heating up of this conflict this year, its social background and consequences.The paper focuses on the legal aspect of the issue and simultaneously its socio-cultural backdrop.The motive of the paper is to flash light on various angles of Jammu &Kashmir issue.It also tells about the Imran khan’s government campaign on article 370 and also includes the results faced by Pakistan as well as Jammu & Kashmir in regard to such revocation.

An Introspection of Article 370

Kashmir, a sloping valley that fringes Pakistan and India, has been a focal point of contention between the two nuclear-armed nations since the 1947 parcel of British India.At the hour of the segment, the British consented to partition their previous state into two nations: Pakistan, with a Muslim dominant part, and India, with a Hindu lion’s share.The two countries desire Kashmir, which is Muslim greater part, and possess segments of it with military powers.For quite a long time, an uneasy impasse has won, broken by incidental military invasions, fear monger assaults and police crackdowns.

The organization of Prime Minister Narendra Modi repudiated Article 370 of the Indian constitution, a 70-year-old agreement that had offered self-sufficiency to the territory of Jammu and Kashmir, which incorporates the Hindu-greater part region of Jammu and the Muslim-lion’s share Kashmir valley. The administration likewise acquainted a bill with strip the locale of statehood and gap it into two sections, both under direct control of the central government.

Modi, a Hindu patriot, had crusaded for re-appointment to some degree by stirring enthusiasm against Muslim-drove Pakistan. He guaranteed the full reconciliation of Kashmir, a reason which his gathering has supported for a considerable length of time, and now he is conveying on that promise.

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Pakistan’s head administrator, Imran Khan, approached President Trump to finish on an offer he made two weeks back to intervene the Kashmir debate.

The immediate cause for this conflict to heat up was a suicide attack on 14 February by a young Islamic militant who blew up a convoy of paramilitary forces in the Indian aircraft responded to the attack and took it to Pakistan.The Indian government says that it is attacking a training camp for the terrorist Jaish-e-Mohammed, who was responsible for the bombing.The next day, Pakistani and Indian combat aircraft clashed over Indian-controlled territory, and the Pakistani military destroyed an Indian aircraft – the MiG aging Soviet-era K-21 and captured its pilot.It was the first air clash between rivals in five decades.Pakistan quickly returned the pilot to reduce diplomatic tension. Modi used the nationalist rise on the Pulwama invasion as part of his election campaign, which helped his Bharatiya Janata Party win.

Pakistani Prime Minister Imran Khan was elected with the powerful military back of his country last year, and wanted to show that he could stand by India, even though his country’s economy was so weak that it could bailout Saudi Arabia and China.

The Supreme Court (SC) ruled in several decisions that Article 370 was made permanent as the Constituent Assembly did not make any recommendation in 1957 on repeal under Article 370 (3). This argument is compelling, because if we consider it as a provision, then the relationship between India and Jammu and Kashmir would be of a temporary nature and if it was removed, the state would return by 1947–50.At the same time, it should be noted that Article 370 was used to expand federal jurisdiction beyond its original jurisdiction. Since the Constitutional Assembly is the supreme authority, it may choose to create a new constitutional relationship by completely repealing existing arrangements and re-visiting the accession provisions under the IoA.

The Presidential Order, passed on 5 August with the Governor’s consent, fulfills the initial injunction of 1954, which was passed on the recommendations of the Constituent Assembly of Jammu and Kashmir. It implemented certain provisions of the Constitution of India with amendments and exceptions. The Order of 2019 applies to all the provisions of the Constitution of India, which are amended from time to time with changes in Article 367. By Article 367, the word “Constituent Assembly” found in Article 370 (3) has been changed to “Legislative Assembly”. As the State is governed by the President, the Central Parliament is now governed by its Legislative Assembly under Article 356 of the Constitution of India.

In his inaugural address to the Constituent Assembly, Sheikh Abdullah elaborated on the consequences of Jammu and Kashmir entering either India or Pakistan. After India’s accession was approved, the draft committee came out with its report detailing how and with what changes the Constitution of India will apply to the state. Based on the recommendations of the Constituent Assembly, the President passed a preliminary injunction enforced by the 1954 Constitution (application for Jammu and Kashmir) or the revised version of the Constitution of India in Jammu and Kashmir. For example, Article 81 provides direct elections to the LokSabha (lower house of the Indian Parliament) for Jammu and Kashmir,in form of nomination from the state legislature. In the case of Puranlal Lakhanpal vs The President Of India And Others[1], the SC has upheld it. The original order was higher than the previous orders issued by the former ruler.

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Despite several arguments for the effective repeal of Article 370 in its application to Jammu and Kashmir, the President’s order has received little attention. The SC has a very important role in coordinating discussions about the temporary or permanent nature of Section 370. One way to do this is to present and recognize the principle of sanctions contained in the 1957 presidential decree. The initial injunction is a constitutional document and not a general presidential decree. Keep in mind that the initial injunction rests with the authority of the State Constitutional Assembly. At a more general level, it should be given more prominence than the “normal” presidential decree, which has the power of the state government, the state legislature, and in some cases the governor. This is another area where the SC should provide appropriate resolution, that is, the state government or the legislature should approve it, as we have seen all three of them so far.

The Constitution of India, which was enacted by the Constitutional Assembly of India, did not apply to the state until 1954, meaning that it was not within the legal jurisdiction of the state, except in the cases specified in the IoA. The Jammu and Kashmir Constituent Assembly is made up of the “people of the state of Jammu and Kashmir” for the following purposes: drafting a constitution for the state, deciding the

question of accession, defining federal jurisdiction and deciding on the head. As AG Noora stated: “The Constitution of Jammu and Kashmir is not a gift of the Center. It is about emphasizing the right of people to be their own boss. It was convened on 1 May 1951 under the declaration of the Head of State. It is directly chosen by those with adult franchise. “Nariman claims that the Constitution of Jammu and Kashmir is subject to the Constitution of India, as the Constitution of India is not enforced by the Constitution of its Constituent Assembly. The assertion argument is not very binding.

It was repealed after the Constituent Assembly defined federal jurisdiction and implemented the state constitution. Since 1957 there has been an important development which has been overlooked by historians and scholars. All presidential decisions passed after the repeal of the Constitutional Assembly are constitutional “amendment orders” (applications to Jammu and Kashmir). These orders have the effect of amending the initial order of 1954, which implies that the State Government / State Legislature exercises only amendment powers and does not have the authority to overturn the preliminary injunctions. According to the basic structure principle outlined in the Kerala State landmark case, Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr[2]. ,which clearly described by Justice Chandrachud in the case of Minerva Mills Ltd. & Ors vs Union Of India & Ors[3] as follows: “You are also aware of your document that the founding fathers are committed to your care. , You know the needs of your generation. But, the Constitution is a valuable heritage; Therefore, you cannot destroy its identity.” The problem with the 2019 order is that it has been approved under the amendment powers, which seeks to override the original order. This amendment is equivalent to creating a new constitution under the powers.

To put this in perspective, Article 370 is temporary, as long as the Constituent Assembly of 1951–57 is of a temporary nature, characterized by constitutional power. After 1957, however, it allowed the state to amend the original order, and to that extent, it became permanent. Given that all presidential decrees have been accepted as amendment orders since 1957, it states that the order of 2019 can only amend the initial injunction and not enforce the new one. For that, a new constitutional assembly is necessary because the powers that define the relationship are the sole domain of the constitutional assembly. The Parliament, under its amending powers, cannot amend the important features of the Constitution of India or create a new constitution under those powers, and the State Government does not recommend changes that would make the original structure of the initial ordinance of 1954 Violate Presidential orders under those powers. Necessary facilities can be selected from important documents such as the Instrument of Accession (IoA) and the Delhi Agreement which establish the basis of the original order. This requires a review of the case, Sampat Prakash vs State Of Jammu & Kashmir & Anr[4]

Historically, the SC has failed to recognize the role of the Constituent Assembly in ending the relationship between the state and the Union.In the Puranlal case, it was stated that the power to amend the Constitution of India was absolute without any limitation in light of the changes in Article 81.The Court is of the view that the President’s powers to approve the presidential decree continue because he does not recommend repeal.Another argument related to such substances after the Constitutional Assembly was repealed.It was argued that the power in Article 370 (1) was limited to “minor changes” and that it did not have the practical power to repeal an article of the constitution which is applicable to that state given the nature of the court’s holding in the Puranalal case, the court has decided not to engage in this argument.The court did not accept that the Puranlal case was decided in the context of the Constituent Assembly and the Sampat Prakash case was bound to question the platform of the Constitutional assembly’s stage.In light of this, relying on the Sampat Prakash case as an example is questionable and therefore a review is needed to accept the suggested propaganda theory.

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The issued presedential order which bought constitutional changes may also lead to legal challenges. Last year, the Supreme Court of India ruled that Article 370 could not be repealed because the state-level body that had to accept the change did not exist in 1957.

Modi’s move to integrate Kashmir in India is likely to be popular in the country. But there are panic attacks in Kashmir that have been going on for decades against Indian rule.Pakistan, for its part, said that it is going to execute all possible options to converse the illegal steps taken by India.

The Imran Khan government’s campaign on Article 370 further illustrates India’s efforts to make the world understand that augmentation of Jammu and Kashmir with India is legitimate and valid, and that Pakistan-occupied Kashmir is the only unresolved issue.

Pakistan was aggressively campaigning to restore the status of Article 370 before August 5.On August 5, the Modi government abolished the special status of Jammu and Kashmir under Article 370.

The Pakistan campaign is the first example of its government ratifying Article 370

According to Article 370 of the Constitution, Pakistan has escalated its diplomatic attack on India since August 5 when the Narendra Modi government abolished the special status enjoyed by Jammu and Kashmir. The Imran Khan government in Pakistan has consulted a number of countries, including the P-5, the UN and Islamic groups, to support the Article 370 move in Jammu and Kashmir, but has been largely unsuccessful.

Article 370 gives Jammu and Kashmir a certain degree of autonomy and, unlike other states, has its own constitution, its own penal code, special flag and special provisions of permanent residents. But this was considered discriminatory by many.

For a long time, Article 370 was considered a gateway to Jammu and Kashmir to integrate with India. Pakistan has never accepted this arrangement that defines Jammu and Kashmir’s special relationship with India. In the case of Pakistan, Article 370 states that the whole of Jammu and Kashmir belongs to India, and the main objection is that the merger of Jammu and Kashmir with post-partition India is valid. This was also the case in the first United Nations resolution, which showed that Pakistan never intended to enforce it.

Pakistan refused to recognize Jammu and Kashmir’s entry with India and the refusal of the merger was based on the theory of the two countries that led to the creation of Pakistan. All Pakistan governments, including the current policy headed by Imran Khan, have used Jammu and Kashmir as a means of justifying the creation of Pakistan on the basis of the two-nation theory. For India, the entry of Jammu and Kashmir is a statement that rejects the ideology of the two countries.

Now, by aggressively campaigning to restore Jammu and Kashmir’s status before August 5, the government of Pakistan’s Imran Khan has officially accepted the validity of Article 370. It is India who has accepted that Jammu and Kashmir belongs legally and therefore, it has no locus standi and has never been taken into the public eye of Pakistan.

Pakistan’s campaign against the action of Article 370 has another important message as it is legally accepted over Jammu and Kashmir. The real focus of the Kashmir conflict between India and Pakistan is now shifting to Pakistan-occupied Kashmir, which includes Gilgit and Baltistan. This is a position India has always had.

Pakistan is ruled by the Iron Curtain-Administration in the region, which occupies Pakistan’s occupied Kashmir. The political demand to fully integrate Pakistan-occupied Kashmir with other provinces of Pakistan is also weak in that country. Pakistan has never tried to give the same civil benefits to the POK as the rest of Pakistan has enjoyed.This is mainly due to an understanding of Pakistan’s shaky ground and its claim to Kashmir. With an international campaign calling for the abolition of the special status of Jammu and Kashmir and the restoration of all the provisions of Article 370 in the state, Pakistan has built a case in Pakistan-occupied Kashmir – which completes the former princely state of Jammu and Kashmir.

Pakistan is upfront against the Article 370 move, which has also discouraged its all-weather friend China from illegally occupying Aksai Chin since 1962. Like Pakistan, China has also challenged India’s territorial integrity by rejecting Article 370. Jammu and Kashmir.

For a long time, China has focused on Pakistan and has been eyeing the export of terrorism in the valley. But Pakistan has also challenged the Chinese occupation of Aksai Chin by demanding the restoration of the status of Jammu and Kashmir under Article 370. This late understanding of the Pakistan campaign can be seen in the recent Chinese statements emphasizing the mutual settlement of the Kashmir issue between India and Pakistan.

The Imran Khan government’s stance on the Modi government’s Article 370 action has rewarded China with 5,882 square kilometers of land in the Shakespeare Valley of Pakistan. The region is now known as the Trans-Karakoram Tract of China.

This land transfer would be an illegal treaty signed by Pakistan in 1962-63 to keep China happy and deal with India. It’s like knowing that someone’s land is forcibly sold and sold after being forcibly occupied. Accepting the legitimacy of Article 370 in Jammu and Kashmir, Pakistan has also questioned China’s invasion of Kashmir on the second front.

Finally, support for the sponsorship of separatism and terrorism in Kashmir, Pakistan’s stated policy is a statement of Pakistan’s Prime Minister Imran Khan and his ministers intervening in the internal affairs of other countries in the wake of batting to restore Indian law. An Indian state.

This campaign by the Imran Khan government on Article 370 is certainly good news for India, which is unilaterally trying to make the world understand the state of Jammu and Kashmir in relation to India. The Imran Khan government of Pakistan has intensified India’s efforts in this regard in the past few weeks.

Though the context of the issue is national, its domestic impacts are radicalization of youth society, mass protests and riots against the removal of special status separatist and mainstream political mobilization against the Indian government.

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Human rights issues in Kashmir are detention or house arrest continues over week and thereby lack of freedom of movement which violates Article 19,and also reduction in freedom of speech,freedom of press and freedom to conduct meetings. Extensive use of PSA (Public Safety Act) is to keep many Kashmiri youths in custody for no apparent reasons. Information on place of detention and about any possible meeting of preventive families is not provided. Most of the markets, banks, colleges, etc are closed, therefore affecting the right to employment and right to education, (Article 21-A). Abuse of all sorts by the Indian army (due to military nature of their training which is not applicable in the case of civilians and deep rooted internal prejudices about the people of the valley) to force people out of their homeland.

Arguments as to whether security imperatives can supersede democratic and human rights in the case of the ongoing Kashmir problem. On 5th August 2019, the President of India issued the Constitution (Application for Jammu and Kashmir) Order, 2019, which boycotted the power given by clause (1) of Article 370. The Government of India has amended Article 370. The special status granted to Jammu and Kashmir under Article 370 has thus been abolished.

Article 370 let the Kashmiris see themselves as the masters of their separate identity and autonomy. The Government of India has imposed curfew in parts of Kashmir, shutting down internet connectivity and telephone lines to prevent any possible threat since Article 370 was made inoperative.

Possible safety imperatives are Pak intrusion prevention, Taliban may come to Kashmir after US-Taliban talks, terrorist group infiltration through LOC which are Global in context. National security is an important concern, not only for political manufacturers, but also for ordinary citizens that official claims about security should be investigated if necessary. The important question is whether, and at what point, security imperatives can supervene upon democratic and human rights. The issue was hotly debated in relationship surveillance and privacy rights in the US and Europe generally. On J&K, the official argument is that dilution of Article 370 and demotion o state into two union territories would enable better protection and security. It is also argued that preventive detention, curfew and communication lockdown are necessary to prevent any deterioration in security. In the second decade of the 21st century in a country that has adapted itself to its democratic character, India is facing criticism by the world’s media and nations. America and Europe have asked India to give people back their freedom.

The Constitution states that the only case where the security imperatives trump individual rights are extreme instances such as National Emergency (Article 352). I fully agree with this opinion and would like to believe that the government uses such power honestly and respects the importance of fundamental Rights of the people of ancient India worth peace, prosperity and mutual respect.

The provisions of Article 370 came into force from November 17, 1952. Let us now understand the main provisions of Article 370 of the Constitution of India.

Article 370 gives J&K citizens the following rights and privileges;

  1. Jammu & Kashmir; It is an integral part of the Indian Union. But its area, name and border cannot be changed without the permission of the state assembly.
  2. According to this article, the central government must obtain permission from the state government to enforce all laws except defense, foreign affairs and communication in the state.
  3. Jammu and Kashmir has a constitution because of Article 370 and its administration is not in accordance with the Constitution of India.
  4. J&K has 2 flags; One is Kashmir and the other is the Indian tricolor flag.
  5. The citizens of other Indian states cannot purchase any property or kind of property in this state. This means that the fundamental right to property is still in effect in this state.
  6. The people of Jammu and Kashmir have two types of citizenship. One is Indian citizenship and the other is Kashmiri citizenship. It is worth noting that no other Indian can get two citizenships at once.
  7. If a Kashmiri woman marries an Indian, her Kashmiri citizenship ends, but if she marries a Pakistani, it does not affect her citizenship status.
  8. If a Pakistani boy marries a Kashmiri girl, he gets Indian citizenship, but Indians do not have this right.
  9. Part 4 (Directive Principal of State Policy) and Part 4A (Fundamental Duties) of the Constitution of India are not applicable in this State.
  10. The most surprising right is that degrading the national symbols (national anthem, national flag, etc.) in J&K does not fall into the category of crime.
  11. The President of India does not have the authority to declare a state of financial emergency in the state.
  12. Any amendment to the Constitution of India does not automatically apply to J&K unless the President accepts special orders.
  13. The central government can impose a state of national emergency on only two conditions; War and external invasion.
  14. The President does not have the power to uphold the Constitution of the State by failing to comply with the orders of the President.
  15. If a national emergency is imposed on the basis of internal disturbance in the country; this state of emergency does not apply in the state of Jammu and Kashmir until it is approved.
  16. The central government does not impose a state of national emergency on the basis of internal disturbances in the state. The Central Government must obtain the permission of the State Government before doing so.
  17. Only a resident of Kashmir can opt for state government jobs.

It is clear from the above facts that Jammu and Kashmir is an integral part of the Indians, but this state has certain provisions for its citizens which are not enjoyed by other Indians. In Jammu and Kashmir, the main reasons behind terrorism and agitation are the vested interests of some separatist leaders. These separatist leaders instigate the children of poor families for terrorist activities while their children study abroad. Now is the time for the people of Kashmir to understand the vested interests of these separatist leaders and restore peace and prosperity in the region.

Laws and orders of the land are made,amended or quased for the peaceful coexistence of human being in a social system.The yesterlands laws may not be applicable for tommorow land.The transition of laws must be accepted and digested in order to function the system smoothly .In the scenario of Jammu& Kashmir ,the law enforcement are very closely related to the regional and religional sentiments of the people which can cost very diversified implication for the whole nation.Therefore repealing of Article 370 which tarnished the common people’s sentiments in Jammu&Kashmir should either be compensated with region friendly laws or awareness and action in the grassroot level should be taken in this context. The political propoganda behind this decision is clearly visible but the constitution itself has enough loopholes to cover up the same and project it as a normal verdict.


[1] 1961 AIR 1519, 1962 SCR (1) 688

[2] AIR 1973 SC 1461

[3] 1980 AIR 1789

[4] 1970 AIR 1118


Vishwas
Reshna

Author: Reshna Suresh

Co-Author: Vishwas Raj

Manipal University Jaipur (LLB)

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