Abrogation of Article 370 and Aftermath

Prof. Virender Gupta
The action of Union Government on 5th August 2019 amounting to scraping of Article 370 and 35A did not only surprise the general public of India but also the legal luminaries, leaders of most of political parties and political analysts who were of the firm opinion that Article 370 cannot be abrogated at any cost as it has acquired a permanent status . The legal luminaries and political analysts were of the opinion that irrespective of its reference under Part XXI of Indian Constitution as Temporary and Transitional, as the Constituent Assembly of Jammu and Kashmir State which was empowered to decide about its fate ended its proceedings without taking any decision on it, and the Constituent Assembly incorporated all the provisions of concessions granted to the State under Article 370 and also under the agreement entered between Sheikh Mohammad Abdullah and Pt. Jawaharlal Nehru in !952, called as 1952 Agreement, in the Constitution of Jammu and Kashmir. Clause (3) of Article 1 of Jammu and Kashmir Constitution empowers the President to make an order abrogating or amending Article 370, but requires the recommendations of Constituent Assembly and it has ceased to exist after the formation of Jammu and Kashmir Constitution. The President’s notification of the Constitution (Application to Jammu and Kashmir) order of 2019 of August 5 amends Article 370 of Indian Constitution and scraps 65 years old Presidential Order of May 14, 1954. President’s order of 1954 makes exceptions about the applicability of certain provisions and amended the Indian Constitution and provides special rights and privileges to the State Government. The introduction of Article 35A in the Indian constitution is the part of the President’s notification 1954 defining permanent residents of J&K State and providing special privileges to them with some exceptions to the female citizens of the State.
The Constitution of Jammu and Kashmir has restricted the power of Government of India and that of Parliament to three subjects, namely Defence, Foreign Affairs and Communications, as specified in the Instrument Accession. The President has the powers to extend such other provisions of Indian Constitution and laws related to these specified matters, in consultations with the State Government. The President of India can extend other provisions of Indian Constitution or other Union powers which do not fall within the ambit of the Instrument of Accession with the concurrence of the State Government. The concurrence given by the State Government has to be ratified by the State Constituent Assembly. Clause (3) of the Article 1 of State Constitution empowers the President to make an order abrogating or amending Article 370, but requires the recommendations of the State Constituent Assembly. Further, under clause (3) of Article 368 of Indian Constitution, no Constitutional amendments shall have effect in relation to the State of Jammu and Kashmir unless applied by the order of President under clause (1) of Article 370 which requires the concurrence of the State Government and rectification by the Constituent assembly of the State.
It was considered a very difficult proposition to remove the Article 370 with the existing framework of laws and rules in Indian Constitution and that of State. Government of India acted in a most innovative way to use Article 370 itself to make it non- operational. It has not been abrogated and remains a statute. To do this President Notification 2019 added clause 4 with four sub clauses of Article 367 under “Interpretation” ( article 367 was incorporated by the President’s notification 1954). As per the notification of 2019 references to this constitution or to the provision thereof shall be construed as reference thereof as applied in relation to said state.
i) Reference to Sader-i-Riysat means Governor of Jammu and Kashmir.
ii) Reference to Government of Jammu and Kashmir means Governor of the State acting on the advice of Council of Ministers. Under Presidential Rule Parliament will act as State Assembly.
iii) Reference to Article 370(3) “Constituent Assembly of the State means “Legislative Assembly of the State.
The Reorganization Bill, 2019 was also introduced in Rajya Sabha on August 5, 2019 by the Minister of Home Affairs, Amit Shah, The Bil reorganize the State of Jammu and Kashmir into (i) The Union Territory of Jammu and Kashmir with Legislature, and (ii) the Union Territory of Ladakh without legislature.
Those who supported the bill in the Parliament include BJP and its allies: Siv Sena, Shiromani Akali Dal, AGP and BPF. Others parties supporting the bill were AAP, TDP,YSR, AIADMK and BSP. TMC, NCP, walked out of the Parliament. Those parties which opposed the bill include CONgess, PDP, NC, Janda Dal (united), RJD, CPI, CPI (M). Jamiat Ulemo-e-Hind prominent muslim organization supported the decision of Abrogation of Article 370 saying that the integration of Jammu and Kashmir with India is in the interest of Kashmiri people.
There have been dissensions within Congress, the main opposition party with regards to its opposition to Constitutional Amendment Bill 2019. Senior Congress leaders like Jyotirajya Scindia, Janardhan Diwedi, Deepender Hooda, Anil Shashtri, Milind Deoria, Congress MLA from RaiBareli-Aditi Singh, Kripa Shanker Singh, former Mumbai Congress Chief and Bhubneshwar Kalita whip in the Rajya Sabha of the Party who quited his member ship from the upper House. Even the Former Prime-Minister, Dr Manmohan Singh in his one of the interviews afterwards, said that Congress Party was not against its scrapping. Party only wished that the decision should have been taken involving the people of Jammu and Kashmir and with their goodwill.
The UT of Jammu and Kashmir has partial Statehood status and has a legislature and Lieutenant Governor. It has an elected Chief Minister and Council of Ministers. L.G is a representative of the President and acts on the aid and recommendation of the Council of Ministers but he does not need the approval of the Council of Ministers on every matter. L.G of UT Ladakh is head of the State and head of the Government. UTs are governed by the Central laws. 37 Central Laws have been applied to the UT of J&K at present.
Permanent Resident Certificate has been replaced by the Domicile Certificate and new rules and regulations have been framed for the eligibility of being the domicile of the State. With the abolition of Article 370 and 35A the West Pakistan refugee, Balmiki and Gorkha communities who have been deprived of the State Permanent Resident Certificate and thus were suffering humiliation and were deprived of many benefits that the other citizens were enjoying. They became eligible of state PRC and consequently became eligible for becoming the domicile of the state to enjoy equal treatment and benefits vis-a-vis with others. Those having PRC and their wards and those having served in the State and Central Government Services and in Government Undertakings continuously for a specified period, and those residing continuously in the State for a specific period of time have become eligible to earn domicile certificate of the state.
Law and Order Situation and Initiatives
The law and order situation has considerably improved. Many terrorists have been arrested or liquidated and their Commanders have been killed. Import of terrorist from across the border have been minimized with the vigilance on the borders using latest techniques, many over ground workers have been arrested and the process of their arrest is continuing, sources of hawala transactions have been plugged and good number of persons involved in the transactions have been arrested. Because of all these steps the security scenario in Jammu and Kashmir State has drastically changed. Stone pelting has considerably been reduced. The slogans of Greater Autonomy, Self Rule or Azadi are not heard. It looks that the so called main stream political parties have reconciled to the present constitutional changes. By and large the people of Jammu and Kashmir particularly those of the Valley feeling relieved of the sufferings those they have faced due to regular bandhs, violence and strikes. They also feel relieved of the administration that was drenched with corruption, nepotism and inefficiency. They also get rid of the political leaders who always exploited them with their own political gains, supported the separatism and terrorism or allowed to flourish these with their active connivance.
The present Government is taking pain to provide corruption free, efficient and responsive administration. Many development projects have been initiated and the work on the pending projects which had been waiting for their completion for decades has been taken up. Number of projects on the construction of roads and bridges and also on development of other infrastructures, have been under taken and good number of them are at the end of their completion. Efforts are being made to provide Jammu region of its due and do justice to its people. The region has faced deprivation and neglect in all fields of life, social, financial, political, administrative and cultural. Jammu region is going to emerge as hub of educational activities. Jammu has Central University, State Engineering College, Bhabha Gulam Shah University, Mata Vaishno Devi Technical University, IIM, Indian Institute of Mass Communication, IIT, Chain of Medical Colleges of which four are newly established/under the process of establishment. Construction work on building of AIIMS has started. The net work of road connectivity on large scale has been initiated in the state as well as in the Jammu region. The work on Delhi – Katra Super highway going to commence, work on Ring road across Jammu is in progress. Metro Rail project has been visualized, its routs have been identified and further process of tendering etc. is going on. Similar developments activities are being pursued in the Valley. Thousands of acres of government land has been retrieved from the land grabbers and the process is still continuing. The Roshni Act has been abolished and land have been got vacated from the illegal occupants.
The State as well Government of India has strengthened the participation of the people in the development activities at grass root level by giving more powers to the Panchayats, District Development Boards, Municipalities and the Corporations. The people participation in the development activities and their positive response towards the recent changes in the state administration structure has been instrumental in removing the so called alienation of the people of the State, particular of the Valley.
Answer to Queries
Some of the people have raised the eyebrows and making protests on the replacement of Permanent Resident Certificate by the Domicile Certificate and have alleged it is an attempt to change the demography of State. The people should know that a person can be domicile of only one of the states of the country. People who have established themselves in any other state would not like to get uprooted from their original native place and opt for migration to J&K State. But what are the answers for the questions: that the number of Muslim families who migrated from Tibet were allowed to settle in the State and acquired State PRC, that number Muslim families from the rest of India have acquired PRC of State, particularly those of Muslim priests, that on what ground the Rohngiyas were persuaded to settle in Hindu majority area of Jammu Province and were provided residential accommodation and some of them are have acquired even the State PRC, and that how are the Muslim families form Valley were encouraged to purchase or illegally occupy the Govt./Forest land in the vicinity of towns of Jammu province with an motive to change the demography of Jammu province.
Some of the people and the political parties are trying to exploit the people of Jammu region telling that the Dogras identity is being eroded, Dogra Rulers had extended the boundaries of State up to Tibet and this Government has reduced the State up to Jammu and Kashmir provinces only. Astonishing, among these political parties are also those who have opposed the article 370 and demanded Separate States for Jammu, Kashmir and Ladakh provinces. Was the identity not wounded and hurt when Pakistan occupied a major area of Jammu and Kashmir State under the jurisdiction of the Dogra Maharaja in 1947 and China too grabbed the good proportion of Ladakh region in 1962 war. There may be some pricks here and there during the present regime but one has to look towards the positive gains that the people of Jammu and Kashmir are getting or going to get in the future to come.
Closing Remarks
In the prevailing circumstances the UT status for Jammu and Kashmir is the only option to stream line the state and meet the challenges thrown by Pakistan and China too. The demand of statehood by some sections of the people is only a gimmick or is an attempt to re-establish their political existance. The general masses would not get swayed away by their nefarious attempts. However, the permanent solution to the Jammu and Kashmir problem is not going to be achieved by getting statehood for it. The statehood if granted would take back us to the old problems of mistrust among the people of Jammu and Kashmir regions and alienate the people of these regions form each other. People of Jammu region would again be exposed to the discrimination and negligence that they faced earlier, after the accession of J&K State with India. The solution lies in having separate autonomous development councils for both Jammu and Kashmir provinces as these are existing in Leh and Kargil districts of Ladakh, or by the bifurcation of present UT into separate Jammu and Kashmir States.
(The author is a political observer)