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ARTICLE 370: A CONSTITUTIONAL COUP?




ABSTRACT


Indian constitution is known as the lengthiest and most efficient constitution. The constitution makers must have been very prudent while making the constitution because of wide diversity in a country like India. One of the Article that is Article 370 has nowadays been creating a lot of buzz in the country. Article 370 lays down special status that the state of Jammu and Kashmir have been enjoying.


The purpose of writing this essay or rather an Article is to finding or exploring the puzzling questions regarding Article 370, whether this Article 370 is justified according to legal aspects, or what led to this Article all of a sudden, also starting from the history of the state of Jammu and Kashmir to what led this Article to be such a controversial subject, hence every important aspect of this Article is covered under this essay.



HISTORICAL BACKGROUND.


A very well known fact that the state of Jammu and Kashmir has been given special status by our constitution is still not known to many of us that out of all states in India why only Jammu and Kashmir has been entitled as one. In October 1947, Pakistan broke the standstill agreement . Pakistan invaded Kashmir from north with an army of soldiers and tribesman armed with modern weapons. Jammu and Kashmir was under serious threat .When it became impossible for Hari Singh to control the troops, Jammu and Kashmir requested India for military aid. India agreed to help subject to condition that Jammu and Kashmir have to accede in India .Jammu and Kashmir agreed to accede to India. Thereafter , on 26th October 1954 agreement was signed between Jawaharlal Nehru and Hari Singh known as instrument of accession. Pakistan contested the IOA as forced and fraudulent. India went to the united nation, complaining against Pakistan aggression on the soil of India and clearing it of Pakistani invaders. As a result of which security council adopted a resolution for formation of united nations commission for India and Pakistan (UNCIP) IN JAN 1948.A report was submitted to UNCIP on 2 July 1948 stating the Pakistan invaded Jammu and Kashmir and declared Pakistan and aggressor. Later united nations instructed Pakistan to clear off the area of nationals and asked India to keep minimum force in Jammu and Kashmir for the maintenance of law and order in the state. In July 1949 India and Pakistan signed the Karachi agreement establishing the ceasefire line. Military front was established between India and Pakistan which gradually became a solid boundary which is known as line of control(LOC) .



INTRODUCTION


Discussing about the special status that Jammu and Kashmir have been enjoying as a state of Indian Union and how Modi Government has finally brought that status to an end i.e. Article 370 of the Indian constitution, which says most laws and provisions which the Indian parliament makes, can apply to Jammu and Kashmir only if the state assembly agrees to them.


Home minister Amit Shah, however, dropped two bombshells in Parliament, first, he said that government has decided to scupper the essence of article 370 by a presidential order declaring that henceforth the whole constitution will apply unconditionally to Jammu and Kashmir, the second bombshell is that the state of Jammu and Kashmir will be no longer there, in its place will come 2 union territories, one for Ladakh and one for Jammu and Kashmir.


INSTRUMENT OF ACCESSION


Jammu and Kashmir surrendered only three subjects to the union i.e. defence , external affairs and communications. Also earned the assurance that the people of Jammu and Kashmir through their own constituent assembly would draft their own constitution . Also it was said that the provisions is an interim agreement provided by the constitution of India .

As this pact stated the Jammu and Kashmir will be provided with special status is because of these two added clauses as well :-


Article 370 was incorporated in pert XXI i.e. temporary,trasitional and special provisions of the Constitution of India.


Article 370 provides special status to Jammu and Kashmir states-

• It provides special status to the state of Jammu and Kashmir

• It restricts state’s legislature power over four heads:

1. defence

2. communication

3. external affairs

4. currency


If the central has to take certain steps except that 4 departments they will require assent of state legislature of Jammu and Kashmir.



Article 35 A-


The presidential order was issued under article 370 (1)(d) of the constitution which allows the president to make certain “exceptions and modifications” to the constitutions for the benefits of the “state subjects” of the Jammu and Kashmir . Article 35A was debated for more than 5 months in constituent assembly before it was made a part of the constitution

Article 35A basically talks about rights of permanent residents of Jammu and Kashmir.


•ARE THESE MOVES LEGAL OR NOT?


These whole measures that Amit Shah unveiled cannot be better described than being referred to as a constitutional coup. Not only has he assailed the sanctity of a constitutional provision that was brought in to give legal expression to Jammu and Kashmir’s accession to India in October 1947 but has also driven a stake to the federal structure of Indian polity by simply abolishing a state of the union through a central dictate.


That these shocking announcements were preceded by the kind of measures that were normally associated with the police states- the midnight arrests of mainstream political leader of Jammu and Kashmir, the prohibition of public gatherings, not to speak of the ouster of all, adds the sort of colour one normally associates with coups.


As of now, addressing each of the issues of legality one by one, Article 370 did not drop from midair; it was the direct product of a solemn bargain the union of India struck with Maharaja Hari Singh of Jammu and Kashmir in October1947. India became independent from British on August 15 but the princely state of Jammu and Kashmir which wanted to be independent did not accede to India until after it was attacked by Pakistani tribesmen under the terms of IOA. The Maharaja said to which India agreed, that Kashmir would primarily be acceding in respect of defense, foreign affairs and communications. So article 370 was carefully drafted and negotiated provisions that were intended to cement Jammu and Kashmir’s place in the union on the basis of the conditions under which it had acceded to India.


Now there’s a lot of ignorant commentaries floating around about how article 370 is listed as a temporary provision in the constitution and can thus be done away with .It could have been done away with by the Jammu and Kashmir constituent assembly which chose not to do so. According to the constitutional expert A.G. Noorani, who has written a book on Article 370, article’s provision are temporary, in that the State Government’s authority to give its concurrence to presidential orders lasts only till the State’s constituent assembly is convened.


Amit Shah tries to get around this in a two step process:-


First, he claims the presidential order has the power to amend another article of the constitution, Article 367,& he has this inserted into the constitution a redefinition of the constituent assembly of Jammu and Kashmir to the effect that henceforth that expression will mean, the State’s legislative assembly.


Having done this unconstitutional jugglery, a presidential order cannot amend an existing clause of the constitution. In this way Shah then claimed that since the Jammu and Kashmir is currently dissolved and the state is under central rule, parliament can act as a substitute for the legislative assembly and the defunct Jammu and Kashmir constituent assembly as well. This is truly a breathtaking claim. This interpretation was upheld by a constitutional bench of the Supreme Court in 1959 in PREMNATH COAL VS THE STATE OF JAMMU AND KASHMIR. However first Nehru and then subsequent government whittled away at the autonomy of the state regrettably with the backing of subsequent rulings of the Supreme Court.


So there is a serious doubt whether the Amit Shah’s order of simply pushing through the presidential order will pass the test of constitutionality. What about the unilateral conversion of the state of Jammu and Kashmir into a centrally run union territory and its bifurcation. Well, under article 3 of the constitution, this, too is surely not permissible. Article 3 of the constitution says that before parliament can consider a bill that diminishes the area of the state or changes its name, the bill must be referred by the president to the legislature of that state for expressing its views thereof. This is an essential safeguard of India’s federal system and has clearly not been followed in this case and in Parliament, Amit shah invoked the legal fiction that since the Jammu and Kashmir assembly will dissolve and the state is under central rule it is parliament which gets to exercise the prerogatives of the assembly but thinking about how dangerous this logic is, the next time the state is under president’s rule, it could be Tamil Nadu or Assam or Karnataka or any state, Parliament can simply go ahead and vote to abolish that state. Is that what Amit Shah is saying? What Amit Shah and Narendra Modi have unveiled today is not just an assault on the unique place that Jammu and Kashmir enjoys in India but on the very federal structure of the Indian constitution.


· POLITICAL ASPECT OF ARTICLE- 370

Modi government’s move will do nothing for the Kashmiri pandit (KPs) because their exile was a product of militancy and actually took place when Jammu and Kashmir was under central rule for 6 years beginning in January 1990. During this period New Delhi ruled Kashmir as if it were a Union Territory with scant regard for any constitutional niceties. Despite this, it failed to provide security to the Kashmiri pandits since then despite the heavy deployment of security forces across valley, the central government has failed to create the conditions for the Kashmiri pandits to go back home. For the past 12 months the unified command has been directly in the hands of the Centre by the governor, so Modi has been calling all the shots on the law and order front and he has nothing much to show for it. A total of 62000 Kashmiri pandits families are registered with the government in Jammu, Delhi and elsewhere. Last month an opposition MP asked the Home minister that how many Kashmiri pandits had been resettled in the valley since 2014, the government’s answer gave details of money spent, jobs reserved and flats built but it was unable to give any figure for the number of Pandits it was able to finally bring home. So will the abrogation of Article 370 help right a historical wrong to the Kashmiri pandits, it won’t, not unless the government is first able to improve the security situation in the state.


• ECONOMIC ASPECT

Talking about the economy, the reason the economy of Jammu and Kashmir has not seen more investment isn’t because the restriction on the purchase of land by outsiders has been a problem but because of the disturbed security situation there and the failure of the Centre to take timely actions whenever the security situation actually improved.


• INDIA SAYS NO TO MEDIATION

A government official once said” By scrapping Article 370, we have ended the possibility of any mediation by Trump and closed the door for Pakistan to keep internationalizing Kashmir. “Brave words, but this argument makes no sense at all. India’s stand on mediation and its capacity to withstand unwanted intervention is a function of its strength and not what internal arrangements it has over its own territory. Indeed by claiming that Trump’s offer mediation helped to firm up the government’s resolve to find a way to block him, the BJP is only betraying a certain lack of confidence in its own ability to withstand external pressure. Even with article 370 unchanged, India had the ability to rebuff any unwelcome mediation effort as it did in 1990s. So this safeguarding India from mediation argument holds no water.



CONCLUSION


It is however worth looking at how Article 370 move will change things for India at a global level. World reactions have so far been guarded. Pakistan has said it fully intends to use the Indians move to activate the Kashmir issue at every possible international forum. China openly came out against the move and used the bifurcation of the state and the creation of Ladakh as a standalone Union Territory to rake up the question of Ladakh’s status as an integral part of India. India has no reason to fear china and has protested Beijing statement but this unnecessary stirring of the diplomatic pot was also foolish.


So where do we stand on the article 370 today? Not only has the Modi & Shah team done something unconstitutional, they have also set the stage for greater alienation and unrest in the valley which in turn will further weaken Kashmir ‘s economy.




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Author Details: Gitika Jain (3rd year BBA LLB, Amity University, Kolkata)

The views of the author are personal only,

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