Withdrawal of Provisions of Article 370 and Article 35A

India is the biggest democracy of the world. A democracy is known for its multiculturalism, multidimensional approach, compromise and accommodation. A democracy’s most important feature is equality embedded with justice. Unlike all these terms which are used coterminously with democracy one feature is not considered that important—unpredictability. A communist and autocratic government works in a set pattern and has clarity of its agenda, priorities and governance model. Even the international community is aware of what these governments are about to do. This does not hold true for democracy because its priorities, agenda, governance tactics, policies, etc. change frequently. For example, USA’s withdrawal from Joint Comprehensive Plan of Action and various other international treaties. In short, actions of democratic governments are very difficult to be anticipated. One such dramatic move was initiated by the Government of India on August 5, 2019, which changed the political map of India and added a new chapter in the history of Indian politics. The Home Minister, Mr. Amit Shah, laid The Constitution (Application to Jammu and Kashmir) Order, 2019 promulgated by the President on the table of Lok Sabha. This Constitution Order supersedes The Constitution (Application to Jammu and Kashmir) Order, 1954. This order makes all provisions of Indian Constitution applicable to the State of Jammu and Kashmir taking back its special status provided under Article 370.

Jammu and Kashmir has been an issue both internally and externally since independence. Maharaja Hari Singh, who was the king of princely State of Jammu and Kashmir when India got independence, wanted Jammu and Kashmir to be an independent nation. But raiders from the neighbouring North West Frontier Province, supported by Pakistan, attacked Jammu and Kashmir. To protect its borders, Maharaja Hari Singh, on October 26, 1947, acceded its entire territory to India in return of military help from the Indian Government. Pakistan army, however, took control over a large part of Kashmir which is now called as Pakistan occupied Kashmir (PoK). India sent its forces and was taking control of the situation but the then Prime Minister Jawaharlal Nehru decided to go to the United Nations, which put a halt to Indian control of the situation. Sheikh Abdullah, who became the first Prime Minister of Jammu and Kashmir after it joined Indian union demanded for more autonomy and special powers for the State. Accordingly, Article 370 was incorporated in the Constitution for integrity of India. This Article came into existence in 1949 and exempted Jammu and Kashmir from most of the provisions of Indian Constitution. Under the provisions of this Article, the Constituent Assembly for the State of Jammu and Kashmir was convened which drafted a separate constitution and a separate flag for the state. The power of Indian Parliament was limited to make laws only on matters of defence, finance, foreign affairs and communication. Laws related to any other matter even from the Union List would only apply to the State only with the approval of the state legislature. Through this article, Jammu and Kashmir was given greater state autonomy. Article 35A was added to the Constitution with the Presidential Order May 14, 1954 which permitted state legislature to define permanent residents of the region. Both of the provisions were bona fide which were incorporated taking into account the special needs of the State.

But this special status had been the cause of debate since 1950s. Shyama Prasad Mukherjee was among the first critics of these provisions. He even quit Indian National Congress because of the difference of opinion with Nehru-led government on the issue of Article 370. He argued for “ek desh, ek vidhan, ek nishan, ek pradhan” (one country, one constitution, one flag, one sovereign head). He was the founder of Bharatiya Jana Sangh, which is the parent party of Bharatiya Janata Party. But ironically, the provisions of temporary part of Constitution continued for 70 years after Independence. Since 1989, Pakistan started sending terrorists into the State to spread violence there. Pakistan started supporting anti-India Hurriyat (separatist) leaders and organisation and started spreading terrorism in the region.

The Union Government while revoking this special status now, has geared up to help end violence and militancy in the State and make government schemes such as reservation, right to education and right to information among others, reach the people. On the same day, a bill to bifurcate the Indian State of Jammu and Kashmir into two Union Territories of Jammu & Kashmir and Ladakh was also passed. Even a few opposition parties welcomed this decision of the Government. Parties like BSP, JDU, TRS, etc. supported the Government on the ground that it leads to greater integration of the region with India. Some senior leaders of Congress like Mr. Bhupinder Singh Hooda and Mr. Jyotiraditya Scindia also supported the Government. Articles 370 and 35A now stand revoked. It was indeed a bold move of the Government. The same has been criticised by many political parties and non-governmental organisations mainly because of the manner in which all this was done.

But we cannot say that this move of government is legally unsound. It is done under constitutional provision of Article 370 itself. Constitutional expert Subhash C. Kashyap says that revocation is “constitutionally sound” and that “no legal and constitutional flaw can be found into it.” Article 370 was necessary to do away with as it was fulfilling merely the purpose of politicians and separatist outfits operating in Kashmir. Also it was not a part of instrument of accession signed by Maharaja Hari Singh. This was included in the Constitution under Part XXI in 1949 as a temporary provision but the vote bank politics resisted any government from taking any action on it for 70 years leading to turmoil in Kashmir.

Most western countries like the USA, France, etc. have supported India on the ground that it is an internal
matter of India. But Pakistan has constantly tried to internationalise the issue by raising it at various international forums. Only two countries which are inclined towards Pakistan in its hue and cry are the Muslim countries, namely, Turkey and Malaysia.

It was indeed the need of the time to integrate Kashmir with India. And this was done on August 5, 2019. Incidents of terrorist violence in Jammu & Kashmir have declined since the nullification of Article 370. In fact, Article 370 had facilitated Pakistan to execute its evil designs in India.

Now, same laws are applicable to the entire country, including those of land, property and inheritance.
The laws passed by the Parliament pertaining to reservation and economically weaker sections of the society, and of instant triple talaq will also apply to Jammu & Kashmir which will benefit its people. The Kashmiri girls marrying outside the state now will not lose their right to inherit, own or buy immovable property in Kashmir. Doors have also been opened for private investment which will give impetus to all round development of the region.

Peace and normal life are now returning to the region. People-to-people contact and interaction have already started. Tourists are visiting Jammu & Kashmir. The erstwhile state now stands at par with the rest of the States and Union Territories of the country. The same Indian flag now flies in the entire country. The same Constitution is now applicable. Truly it is one India now.                                  

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