ABROGATION OF ARTICLE 370

ABROGATION OF ARTICLE 370

HISTORY

·  Before independence British India consisted of colonies & princely states, which were under the Agreement of Suzerainty with England. The criteria for British India to become India laid on the formation of a federation by and between the colonies and Princely states. However, the latter was in constant denial to form a federation. In order to get help from India in World War II, Lord Linlithgow brought August Offer to India, an arrangement whereby, India would get Dominion Status without forming a federation in exchange for support to England, purely forming Quid Pro Quo. India as from its name extended a hand of help in exchange for its liberty little did it know about the conspiracy which laid ahead. During war, Winston Churchill send his three cabinet ministers to conduct the First Cabinet Mission famously known as Cripp’s Mission to formalize the abovementioned offer but with the antecedent condition, that the proposal shall be agreed upon by both Indian National Congress and the Muslim League, hereby sowing the seed of Divide and Rule.

·    The 1930s witnessed growing mistrust between the Congress and the Muslim League. In 1940s Mohammad Ali Jinnah, leader of Muslim League endorsed the idea of partition and the creation of a separate nation for India's large Muslim minority, along the subcontinent’s north-western and north-eastern boundaries. However, on the contrary Gandhiji and other Indian leaders refused to it and so the cripp’s mission turned out to be Cripp’s Mission Fail.

·    Gandhiji launched the Quit India Movement on 08th August 1942 to honor the breach of promise by England. All this was followed by increased sectarian clashes, demand for separate nations, second cripp’s mission and fear of civil war which lead to the arrival of Lord Louis Mountbatten as India's last viceroy in March 1947 with its Lord Mountbatten plan dated 3rd June 1947, which for the first time welcomed the concept of Partition. Later on 18th July 1947, The Indian Independence Act, 1947[1] was passed in London holding that first, on 15th august 1947 British India will be divided into two autonomous dominion  India and Pakistan, former being Hindu dominated and latter being Muslim dominated. Second, termination of agreement of Suzerainty i.e. the princely states can choose to stick with either of the nations.

·    Jammu & Kashmir was one of the few left who couldn’t make a choice as the ruling prince of Kashmir was Raja Hari Singh, a Hindu by religion and ruling on the Muslim population. By October 1947, Pakistan had its strategies to capture Kashmir. Raja Hari Singh in order to save its constituency came into an arrangement with India which is popularly known as Instrument of Accession[2], which held in its clauses that Kashmir will not commit to accept the future Constitution of India further that nothing will affect the sovereignty of Kashmir[3].

·    After all this struggle, Raja Hari Singh left Kashmir appointing his son, Dr. Yuvraj Karan Singh as the Prince. Sheikh Abdulla prominent leader of Kashmir started Quit Kashmir Movement against Raja Hari Singh, he demanded for Ironclad autonomy which was not agreed by India and in exchange Part XXI[4] gave special status to J&K. Relation of J&K with the Indian Constitution goes according to Article 370 which limits the authority of the Indian Parliament to pass any law for J&K. 

Article 370’s way to abrogation  

·    To understand the abrogation procedure undertaken by the current government, we must first know the nature of article 370. Article 370(3) held that the President of India can alter or repeal this article on the acceptance of such action by the Constituent Assembly of the State of Kashmir[5], which justifies why Part XXI includes the term temporary in it. However, on the contrary since the Constituent Assembly dissolved itself in 1956 without recommending the abrogation of article 370, the article was deemed to have become a permanent feature of the Indian Constitution. To overcome this problem - 

·    First, the Presidential Order[6] was issued wherein it was ordered that all the provisions of the Indian Constitution applied to Jammu and Kashmir i.e. superseding “the Constitution (Application to Jammu and Kashmir) Order, 1954”[7]. The order was stated to have been issued with the "concurrence of the Government of State of Jammu and Kashmir" which apparently meant the Governor appointed by the Union government.[8][9]

·    Second, when applying the provisions of the Indian Constitution to J&K, the President made one amendment to Article 367 i.e. by inserting a new sub-clause (4)(d)[10] which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. Meaning that the government overcame the problem of the Constituent Assembly not having abrogated Article 370 by requiring that “Constituent Assembly” in Article 370(3) be read as the J&K Assembly. It is pertinent to note here that the President has not amended Article 370(3) because he does not have the authority to do so, however, he could only amend other provisions of the Constitution, when making them applicable to J&K.

·    Third, on the application of this new interpretation of Article 370(3), the President now could have abrogated Article 370 upon a recommendation to this effect being made by the J&K Assembly. But since J&K is now a Union Territory and is under President’s rule having no legislative assembly, it fell upon Parliament to make this recommendation under the newly changed Article 370(3). Accordingly, the recommendation to the President for the abrogation of Article 370 was issued by the Home Minister through resolution.

·    These calculations finally paved the way for scrapping of Article 370.

Conclusion

·    Whereas this bold act has its own pros & cons. It will open new ventures for private sectors to invest in J&K, this will not only boost the economy of the state but also there will be an increased scope of other job opportunities. The center will be able to provide better medical facilities, measures to control corruption, boost tourism, and will curb terrorism in a better way. However, now Kashmiri citizens will no longer have dual citizenship, which might not go down well with some. Increased strain on delicate relations of India with Pakistan. There have been some practical difficulties and political vulnerability, for instance, the internet issue. But in the end, after years it is One Nation - One Constitution which will grow the feeling of unity & brotherhood among all the Indians.

 

[1] https://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf

[2] The instrument of accession was executed on October 26, 1947 Hari Singh and accepted by Lord Mountbatten - http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf

[3] Instrument of Accession-  Clause 5 of the document said that the terms of the accession “shall not be varied” by any amendment to the Govt of India Act of 1935 or the Indian Independence Act 1947 unless accepted by Hari Singh a supplementary instrument. Clause 6 disallowed the making of laws to acquire land in the state “for any purpose” but permitted Hari Singh to do so for the Dominion of India for a law applicable to the state. Clause 7 said no future Constitution of India (which was still to be written) could be imposed on the state.

[4] Part XXI i.e. Temporary, Transient & Special Provisions of the Constitution of India

[5]Article 370(3) of the Constitution of India - Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

[6]The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) 

[7]Whereas the 1954 order specified that only some articles of the Indian constitution to apply to the state, the new order removed all such restrictions. This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated.

[8]K. Venkataramanan (5 August 2019), "How the status of Jammu and Kashmir is being changed", The Hindu

[9] "Gazette of India, Extraordinary, Part II, Section 3" (PDF). The Gazette of India. Government of India. 5 August 2019. Archived from the original (PDF) on 5 August 2019. Retrieved 6 August 2019.

[10] Article 367(4)(d) inserted by The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) -

https://cdnbbsr.s3waas.gov.in/s395192c98732387165bf8e396c0f2dad2/uploads/2019/10/20191029100.pdf

 

 

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