DECRYPTING THE ABROGATION OF

ARTICLE -370

Current Situation So Far

Supreme Court judge Surya Kant stirred the courtroom on December 11 when
he asked how the government nullified the article-370 and has accepted it as
the will of the people in the absence of the elected assembly of J&K.
He remarked while hearing the petitions challenging the constitutional validity
of the stripping of the Article-370. He asked the senior Raju Ramachandran
when the latter mentioned how the government could unilaterally decide the
fate of J &K people without considering the will of the people.
Raju Ramachandran is appearing for the Shah Faesal, former bureaucrat and
Shela Rashid, former JNU student and activist.
On August 5, 2019, BJP led Government scrapped the Article-370 which
conferred the special status to Jammu and Kashmir and bifurcated the state
into two union territories, J&K and Ladakh.

HISTORICAL BACKGROUND OF THE ISSUE

Article -370 was included in the Constitution on Oct 17, 1949, which grants the
state to frame its constitution, restraining the parliamentary legislative power
concerning Jammu and Kashmir. The law came into existence through the
Indian Independence Act 1947, bifurcating British India into India and Pakistan.
This act dispensed three options in the princely state, to join the dominion of
India, to remain Independent or to join the dominion of Pakistan. There were
some 600 princely states whose autonomy and sovereignty was restored
during the Independence. There number of other states that bestowed special
status under Article 371, from 371A to 370I.

Why is Kashmir disputed?

Kashmir is a Himalayan region claimed by both India and Pakistan as their own.
The state of the Jammu and Kashmir was earlier a princely state, joined the
dominion of India through the Instrument of Accession.

What were the terms and condition included in the Instrument of Accession
(IoA) for Kashmir?
INSTRUMENT OF ACCESSION

The Scheduled added to the IoA gave the parliament the power to legislate in
matters related to Defence, External Affairs and Communication, concerning
Jammu and Kashmir.
However, Raja Hari Singh in Clause 5 of IoA mentioned that instrument of
accession cannot be altered by any amendment of the Act or through Indian
Independence Act unless his consent by any Instrument supplementary to IoA.
According to clause 7, “nothing in this Instrument shall be deemed to commit
me in any way to acceptance of any future constitution of India or fetter my
discretion to enter into arrangements with the Government of India under any
such future constitution.”

Why did Raja Hari Singh sign the Instrument of Accession?

Raja Hari Singh had originally decided to sigh standstill agreement with India
and Pakistan. But after facing the intrusion from Pakistan's tribesman and the
Army, he resorts to Indian government aid. On October 26, 1947, he signed the
Instrument of Accession received by GovernorGenreral Lord Mountbatten on
October 27, 2019.

The instrument of Accession stated that any conflict or dispute will be resolved
as per the wishes of the J&K peoples' wishes.No one-sided decision will be
imposed upon the people of J&K. Lord Mountbatten said that soil of Kashmir
should be cleared of the invader, the state should be accessed through the
reference of the people.
Indian government regarded the IoA temporary as stated in the Government
of India's White Paper on Jammu and Kashmir in 1949.

How was Article-370 being established?

The original draft of the Article-370 was given by the Government of Jammu
and Kashmir. After a few negotiations and modification, Article-370 (earlier
Article-306A) was passed on May 27, 1949, in the constitution Assembly. While
moving the motion, Ayyangar reiterated that though the accession process was
completed, India will offer the plebiscite taken when the condition was
created, and if the accession was unratified, "we shall not stand in the way of
Kashmir bifurcating itself from the state of India.
Was Article-370 a temporary or permanent provision?
Article 370 is mentioned in the Part -XXI of the constitution, under the heading,
Temporary, Transitional and Special Provisions'. Thus, it can be defined as
temporary as the constituent Assembly of J & K has the right to
change/delete/modify the article, also to decide whether to retain or not.
Another argument was the accession was temporary until the plebiscite.
The Union government in the reply to the Parliament in 2018, accepted that
there is no provision to repeal the article-370.
But, the Supreme Court in 2018 said that despite the headnote "temporary" in
the provision, Article -370 is not temporary. In Sampat Prakash (1969), the SC
refused to accept Article-370 as temporary. The five bench judge added that
Article- 370 was never ceased to be operative, hence it is a permanent
provision.

So, this article can be nullified or not?

Yes, Article- 370 grants abrogation by the Presidential Order, but through the
concurrence of the J&K’s Constituent Assembly. As this assembly was dissolved
on January 26, 1957, it can’t be nullified further. There are other arguments
that this Article can be scrapped through the concurrence of the State
Assembly.

What is the importance of the Article-370 in the Indian Union?

Article -370 itself included the Article-1, which mentions the J&K in the list of
states. In other words, Article- 370 is a tunnel through which the constitution is
applied to J&K. Jawahar Lal Nehru has said in the Lok Sabha that the Article -
370 has eroded, on November 27, 1969. India has extended the provisions of
the article-370, 45 times.

Why Article-370 is being scrapped?

The ruling BJP led government and its right-wing allies have always challenged
the constitutional validity of the Article-370 and have called it discriminatory.
Even, Modi led BJP party cleaned swept the May 2019, Lok Sabha Election on
the back of the divisive political campaign, ostensibly demanding the
abrogation of the Article- 370 and Article -35A.

Is the abrogation of Article -370 political, economics, posturing or religion?

Though Hindus are living in J & K, it is predominately a Muslim-majority state
and Modi is well known for his leaning towards the Hindus nationalist.
Even, in 2005, under the US presidential administration, George H. W Bush,
was denied the US visa for the alleged support to the Hindu extremist in
Gujarat riots.
Modi has also said the Jammu and Kashmir largely remain undeveloped due to
the Article-370, which was impeding its economic growth. By nullifying the
article, the state can be a huge tourist destination and a hub for the film
industry.

What has changed on the ground in J & K?

Kashmir will longer have the separate constitution, and like the other Indian
State will comply with the same constitution.
All Indian laws are now extended to the frontiers of Jammu and Kashmir, and
people from the other state can buy the property in the state.