“Just living is not enough… One must
have sunshine freedom and a little flower. ”
Freedom of the states has always been
a controversy. There were a total of about 565 princely states in India when
she got her freedom. A long year ago India made a tryst with destiny and the
British paramountcy lapsed at the stroke of midnight on 15 August 1947. In the
year of 1947, India was divided into two dominions (India and Pakistan) by the Indian
Independence Act 1947 passed by the British House of Commons.
Under
the partition plan provided by the Indian Independence Act, the rulers of these
princely states were given an option either to join India or Pakistan or to
stay independent. Mostly all the princely states joined either India or
Pakistan. Only 3 states were there who didn’t take any decision before
Independence. Those states were Junagadh, Hyderabad and Jammu and Kashmir.
Firstly
talking about Junagadh, the ruler of Junagadh was Muslim and the major
population was Hindu. The ruler on 15th September of 1947 signed the Instrument of
accession with Pakistan.
Indians
took stand against this move of the ruler of Junagadh and the whole population
of Junagadh also protested against him due to which the ruler fled to Pakistan.
Observing the unorganized scenario government decided to have the plebiscite to
decide which country should get control over Junagadh and about 99% of the
votes were in favor of India. Similar to Junagadh vice versa condition was in
Kashmir as there was a Hindu ruler and Muslim majority population. Secondly
talking about Hyderabad, when Indian leaders talked to the ruler of Hyderabad
for his decision, the ruler on November 1947 signed on a standstill agreement.
Thirdly talking about Kashmir, the issue of Kashmir was the biggest and the
most controversial one. Kashmir, since 1947, was always at the center of
decades of tense ties between India and Pakistan.
Kashmir has always been more than a
mere place. It has the quality of an experience, or a state of a mind or
perhaps an idea. As a historical legacy, the Kashmir conflict has been an
outstanding issue for more than half a century. The ruler of Jammu and Kashmir
Maharaja Hari Singh also did not exercise the option given in the partition
plan to either join India or Pakistan. Pakistan evaded Kashmir from North with
an army of about 10,000 of tribal Pathans from Vagiristan. That time Maharaja
of Kashmir appealed to India for help. Indian Governor-General, Lord
Mountbatten, asked the ruler Hari Singh, firstly to sign the Instrument of
Accession then only he will be provided any help. On 26th October
1947, Hari Singh fled from Srinagar to Jammu and there he signed the Instrument
of Accession. Mountbatten signed that treaty on 27 October and thus the
Accession was completed on 27th October and then after that Indian
army fled to Srinagar to help and stop the Pakistan army to move further.
While the war was still being fought on the battlegrounds,
Pt Nehru filed a complaint under chapter 6 of the United Nations Security
Council on 31st December 1947.
In reply to this complain
United Nations passed the resolution which can be divided into 3 parts, 1st
was cease-fire order to stop the war and draw a line of control, and following
the order war ended on 31st December 1948 and Line of Control was
formed which led to the formation of Pakistan occupied Kashmir.
2nd part was a
Truce Agreement which was in India’s favor. It said, as at that time Pakistan
army was there in Jammu and Kashmir firstly they will remove their army along
with the people of Pakistan who occupied Jammu and Kashmir during the war.
The 3rd part
contained issues like how the matter of Jammu and Kashmir will be sought
between India and Pakistan. Both the countries agreed that it depends on the
people of Jammu and Kashmir which of the two dominions they wanted to join.
Now to
make provisions for Jammu and Kashmir a meeting was held in 1949, in which
Sheikh Abdullah, Sardar Patel, and Jawahar Lal Nehru met which is formally
known as Delhi Understanding. It was
decided in the meeting that 4 people from Jammu and Kashmir will become members
of the Constituent Assembly of India, namely Sheikh Abdullah, Mirza Afzal Beg,
Masoodi, and the only Hindu Moti Ram Badga. Constituent Assembly drafted Article
306(A) which later became article 370. This was a temporary setup for the
functioning of Jammu and Kashmir till the formation of a Constitution for the
people of Jammu and Kashmir.
In 1950 by the virtue of the First Presidential Order, a Constituent
Assembly for framing a Constitution for the people of Jammu and Kashmir was
made. While the framing of the Constitution was under process, Karn Singh after
controversy became Sadar-e-Riyasat in place of his father Hari Singh. Article
35(A) was incorporated based on the 1952 Delhi
Agreement between Prime Minister of India Nehru and Prime Minister of Jammu
and Kashmir Sheikh Abdullah.
Article
370
According to the instrument
of accession signed on 26 October 1947, the state surrendered only three
subjects (defense, external affairs, and communication) to the dominion of
India. At that time, the Government of India committed that the people of this
state, through their own Constituent Assembly, would determine the Internal
Constitution of this state, and until the decision of the Constituent Assembly
of the state, the Constitution of India could provide an interim arrangement
regarding the state. In pursuance to this commitment, Article 370 was incorporated in the
Constitution of India. It clearly states that the provisions concerning the state
of Jammu and Kashmir are only temporary and not permanent. Article 370 became
operative on 17th November 1952.
Article
35(A)
This article was given by Presidential Ordinance of 1954 and not
through a Constitutional Amendment under Article 368.
Article 35(A) gave special
rights to the citizens of Jammu and Kashmir. This article allowed state
legislature to define Jammu and Kashmir’s permanent resident. It gives right
only to a permanent resident to buy property in Jammu and Kashmir or get
employment or any kind of aid from there.
Earlier, if women of Jammu
and Kashmir married outside, then their children won’t get the status of
permanent residents but if a man does the same his children will get the status
of the permanent resident. So earlier inequality was there based on gender but
later this was amended in the year 2002 and after that women also got the equal
rights and their children would also be considered as a permanent resident if
they married outside but till present date, on the ground level, this amendment
is not followed yet.
SCRAPPING
OF ARTICLE 370
The repealing of article
370 of the Constitution has been a poll promise of the BJP. The BJP has been
contradicting the special status for Jammu & Kashmir for long. It had
earlier claimed that it could not repeal Article 370 during the Vajpayee
government due to a lack of a majority. The BJP has been opposing it since its
earlier avatar, Jan Sangh days.
Dealing with Article 370 in
the chapter on Jammu and Kashmir, the BJP manifesto said "the BJP
reiterates its stand on the constitutional provision and will discuss this with
all stakeholders and remains committed to the abrogation of this article."
Amit Shah introduced the
Jammu and Kashmir Reorganisation Bill in Rajya Sabha that scrapped Article 370
and Article 35(A) on 5th of August 2019 with 125 were in favor and
61 in against and it was passed in Lok Sabha the latter-day by 370 votes in
favor and 70 against it and finally on 7th August 2019 it got
Presidential assent and got abrogated.
Abrogation of Article 370
though done in a very short span but when observing the acts of the government
it seems to like a well-planned strategy on which the government must be
working for two or three years. It can be noticed from the date of appointment
of Satya Pal Malik as a governor of Jammu and Kashmir. Then on 20th
June 2018, he implemented Governor’s Rule on the recommendation of President
under section 92 of Jammu and Kashmir constitution.
On 21st November
2018, Jammu and Kashmir Legislative Assembly were dissolved. Then on 19th
December 2018 emergency was implemented on basis of article 356 and according
to article 356(1)b, which says that the powers of the legislature of the state
shall be exercisable by or under the authority of Parliament. As Legislative
Assembly is dissolved Parliament can make laws till it is dissolved.
On 5th August
2019 Amit Shah presented the first notification which made changes in article
370(1) (d) and laid down the following points:
(a)
the provisions of The Constitution (Application to Jammu and
Kashmir) order 2019 will supersede the orders passed in 1954 which was being
amended from time to time. This resulted in the revocation of Article 35-A.
(b)
all the provisions of the Indian constitution will also be
applicable in Jammu and Kashmir.
(c) Only a few exceptions will be there which were inserted and changed under article 367. Earlier only 3 clauses were there and 1 new clause was added by this order i.e. clause 4 which said that :
·
Constitution means the constitution as applicable to Jammu and
Kashmir.
· The Governor working on the advice of Council of Ministers means
Governor only.
·
Jammu and Kashmir Government means Governor only.
·
Constituent Assembly in article 370(3) means Legislative Assembly.
The above changes were made
by the first notification which helped in passing the bill resulting in the abrogation
of Article 370. This was the first step for the process of abrogation which
resulted in the revocation of Article 35-A.
After this, 2 resolutions
were presented, and they were to be presented and passed at the same time because
they were interrelated.
In the resolution, article
370 was abrogated and all the sub-clauses were removed and one new paragraph
was added which is as follows:
“All provisions of this
constitution as amended from time to time without any modifications or
exceptions shall apply to the state of Jammu and Kashmir notwithstanding
anything contrary contained in article 152 or article 308 or any other article
in this constitution or any other provision of the constitution of Jammu and
Kashmir or any law, document, judgment, ordinance, order, by law, rule,
revolution, notification, custom or usage having the force of law in the
territory of India, or any other instrument, treaty, or agreement as envisaged
under article 363 or otherwise.”
Now from resolution, it is
clear that the constitution of India will apply to Jammu and Kashmir thereby
article 3 of the Indian Constitution will also apply to it.
It made a passage for the
presentation of Jammu and Kashmir's reorganization bill 2019. Finally, after
the passing of Jammu and Kashmir's reorganization bill 2019, the special status
of Jammu and Kashmir came to an end.
KEY
FEATURES OF THE BILL:
● The bill reorganized Jammu and Kashmir into 2 parts, one is Union
Territory of Jammu and Kashmir with the legislature and the other is a union
territory of Ladakh without a legislature.
● Jammu and Kashmir will be administered by the President through an administrator
appointed by him as Lieutenant Government.
● The total number of seats in the Legislative Assembly is 107 which
will be for a term of 5 years and the Legislative council got abolished.
● Union Territory of Jammu and Kashmir will have Council of
Ministers of not more than 10% of the total number of members in the Assembly.
● High Court of Jammu and Kashmir will be common for both the Union
Territories.
Views
in favor of abrogation of article 370
●
Feeling of one nation through single citizenship.
● Now the government of India will have better control over Jammu
and Kashmir so it will curb terrorism.
● Article 370 was discriminating based on gender, class, and place
of origin.
●
Now fundamental rights will be applicable.
●
The right to education will be applicable now.
●
Now the better quality of professors and other professional
workers can be hired from anywhere.
● A monopoly of business will decline as more industries would be
set up in the valley.
● Now anti-corruption agency and RTI will be applicable in Jammu and Kashmir. Jammu and Kashmir contain about 1% of the population of India and central fund expenditure is about 10% still no development is there. From the data, we can imagine the rate of corruption in that state.
CONCLUSION
It is
a herculean task and the historic move by the BJP Government. It is a step
towards unification which always has a positive effect. The abrogation of
article 370 is depicting the proper step towards the reorganization of our
Country which should have been taken years before.
Our Prime Minister Narendra Modi said that “ARTICLE 370 DID NOT GIVE ANYTHING EXCEPT SEPERATISM”, so finally his Government abrogated it.
Though the process of
abrogation was sudden, after reading of Article 118,122 and 255 of the Indian
Constitution it is tough to challenge it based on the procedure. Some are
calling it unconstitutional on the basis of federalism and some are having there another
point of view but it is now upon our Supreme Court to finally decide its
Constitutionality. Now time will tell the fate of the newly developed union
territories which will be decided by the reaction of the people living there
but presently it seems to be a positive action for the better development of
the nation and the people living there.
NITIKA SRIVASTAVA
B.A. LL.B.
BANARAS HINDU UNIVERSITY
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