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Analysis about the Abrogation of Article 370

This analysis primarily focuses on the revocation of Article 370 by the Modi Government on August 5 2019 by using majoritarian power. The abrogation of the Article 370 clothed to be against the very spirit of the Indian Constitution, principles of humanity and therefore the democratic norms at a broader level. This move was also against the elemental rights from article 26-28-freedom of faith on one hand and on the opposite the targeting of 1 community by the BJP government.

After the partition of Indo-Pak in 1947, J&K was a provincially an independent state which was earlier sold by British Govt. to Maharaja Gulab Singh for a sum of over 7 million. After partition, Unfortunately, on August 20, 1947, Pakistan invaded Kashmir. In its defence, Maharaja Hari Singh sought help from India then acceded to the Indian Union temporarily by signing the "Instrument of Accession". The political parties of J&K are solely liable for the abrogation of Article 370 so this paper will critically analyse the role of political parties. This study may be a critical and theoretical analysis to know the particular myth and reality.

The state of Jammu and Kashmir was territorially the most important princely state of India and its rulers were enjoying nearly despotic powers just like the rulers of other princely states. The state was geographically and culturally divided into four provinces - Jammu, Kashmir, Ladakh and Gilgit. the primary two contained over ninety percent of the state's population, and quite two-thirds of it had been Muslim. Maharaja Hari Singh promulgated the law regarding the 'Hereditary state subject' on January 31, 1992 by which outsiders were debarred from entering the state services and holding immovable property within the state. However, certain top officials on exceptional and special basis were again appointed from time to time.

History of Jammu and Kashmir

In 1846, Maharaja Gulab Singh, a Dogra ruler, bought the region of Jammu & Kashmir from the Malay Archipelago Company after signing the Treaty of Amritsar. In August 1947, after India got independence from British Empire, Pakistan was created as a Muslim-majority country. India's princely states, those not officially with India or Pakistan, got three choices�to stay independent or join either India or Pakistan. Three of such states were undecided.

They were Junagadh, Hyderabad, and J&K. The Indian Home Minister Sardar Vallabhbhai Patel tried to convince the undecided princely states to hitch India and Maharaja Hari Singh signed a standstill agreement with Pakistan, effectively choosing a standing quo.

In October 1947; armed tribesmen from Pakistan infiltrated J&K and Hari Singh realized that he needed Indian help. He reached bent the then Prime Minister Nehru and therefore the Home Minister Patel who agreed to send troops on the condition that the Maharaja signs an instrument of accession (IOA) in favour of India, delivering control of its defence, foreign affairs, and communication. Hari Singh signed the IOA, and Indian troops moved in. The armed conflict, however, continues till today.

After the independence of India, the 'Instrument of Accession' with the Indian Union was signed by Maharaja Hari Singh on October 26, 1947 and therefore the special status within the Indian Union was given by the Parliament through the adoption of Article 306 on October 17, 1949, which was later rescheduled as Article 370. The enactment of Article 370 was but not the start of the special status of the state. In fact, it had been the culmination of a process that had begun in January 1927 and had been influenced by the Instrument of Accession and various national and international compulsions that arose between October 26, 1947, and October 17, 1949.

Procedure used for removing Article 370

On 5 August 2019, Amit Shah introduced the Jammu and Kashmir Reorganization Bill, 2019 within the Rajya Sabha to convert Jammu and Kashmir's status of a state to 2 separate union territories, namely Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to possess a legislature under the bill whereas the union territory of Ladakh was proposed to not have one. By the top of the day, the bill was gone by Rajya Sabha with 125 votes in its favour and 61 against (67%). subsequent day the bill was gone by the Lok Sabha with 370 votes in its favour and 70 against it (84%). The bill became an Act after it had been signed by the President.

Home Minister Amit Shah announced within the Rajya Sabha (upper house of the Indian Parliament) that the President of India had issued the Constitution (Application to Jammu and Kashmir) Order, 2019 under Article 370, superseding the Constitution (Application to Jammu and Kashmir) Order, 1954. The order stated that each one the provisions of the Indian Constitution applied to Jammu and Kashmir.

Whereas the 1954 order specified that just some articles of the Indian constitution were to use to the state, the new order removed any such restrictions. This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated. The President issued the order with the "concurrence of the govt of State of Jammu and Kashmir", which apparently meant that the Governor was appointed by the Union government.

The Demerits of Abrogation of Article 370:

  • Loss of the unique privileges guaranteed under Article 35A:
    According to the provisions of Article 35A the non-permanent residents of J&K couldn't permanently settle within the state by buying immovable property or acquire land or apply for state jobs or any quite scholarships and aids granted by the government. With the abrogation of the article granting them such special powers the citizens of J&K will now lose these benefits that came with their title of being a permanent resident of the state.
  • Fear of loss of the state's demographic character:
    Kashmir is that the only Muslim majority state in India. there's a fear that the abrogation of the act would change the demography state and disempower the Muslims to an extent where they might be reduced to the state of being the second-class citizens in their own state as without the article Hindus everywhere India could migrate to the state and thus change the demographic character.

The total lockdown, with the disablement of communication, would've created a way of enhanced fear, confusion and chaos, something that the people didn't need to are subjected to the politician's daughter in Kashmir, scared to her life, demonstrates the acute conditions of fear that prevailed amongst the population within. Eid Al Adha, one among the core festivals for the people within the state, was celebrated during a sense of lockdown, unknowing and scared. it's not a perfect scenario for a rustic like ours, to be creating an environment of dear within.

Thus overall, all the recommendations would be fulfilling the common purpose and objective of passing resolutions with a way more peaceful and inclusive approach. India with its diverse social fabrics must be more inclusive and sensitive other countries with these differing conditions.

The instrument of accession so signed, was the one condition for the inclusivity of Kashmir within India. Thus, any diversion would necessarily cause a condition for disruption Each intricate situation must be addressed the foremost accommodative manner so on ensure harmonious co-existence.

With reference to Preventive Detention, that was caused by the lockdown and confinement of the leaders of the state, to pass the bill could only be considered a clamping down on the voices of the minority population of the state. What was more important, as many say. was the spirit of the status provided by Article 370? It signalled that the Indian constitution was malleable enough to form space for people that felt alienated or estranged from the mainstream.

The abrogation of Article 370 hence clears that through the bulk any contract will easily be broken. we discover how communalized article 370 was made by the BJP-RSS to prove the Instrument of Accession between PM Pt Nehru and Maharaja Hari Singh. The attack began on a Muslim majority state within the name of 370 then throughout India's Muslims were humiliated, killed, put in jails with the opening of issues CAA, NRC, and NPR.

The ruling party has throughout associations and links with the RSS, whose aim is to form India a Hindu Rashtra, but which is against the Indian constitution that gives all religions equal freedom under fundamental rights from article 25-28 of the Indian constitution. India has an independent judiciary, but it reflected how it couldn't work independently during the BJP government too.

The political parties of J&K moreover did not protect the state special status and eventually many leaders were arrested and put in jails against the protection of article 370. History although will remember this decision was contrary to the Indian constitution and against the desire of Kashmiris.

  1. Basu, D. D., Manohar, V. R., Banerjee, B. P., & Khan, S. A. (2001). Introduction to the Constitution of India (p. 74). Wadhwa.
  2. Rao, H. G. (1967). Legal Aspects of the Kashmir Problem: HS Gururaj Rao. London, New York.
  3. Paswal, N. H. (2020). Caste and Secular Crises in Indian Politics. Our Heritage, 68(30), 10471-10482.
  4. Jamwal, S. S. (1993, January). Article 370-Its Genesis and Reactions In J&K State. In Proceedings of The Indian History Congress (Vol. 54, Pp. 467-471). Indian History Congress.
  5. Ashraf, F. (2002). Jammu and Kashmir dispute: Examining various proposals for its resolution. Published by the institute of strategic studies in Islamabad, Series: Islamabad Papers (20), 1-51.
  6. Teng, M. K., Bhatt, R. K. K., & Kaul, S. (1976). Constitutional History and Documents. New Delhi.
  7. Singh, M., & Jha, M. (2017). The Special Status Conundrum and the Problem of Rehabilitation in Jammu and Kashmir. Mediterranean Journal of Social Sciences, 8(5), 73-83.
  8. Institute of Peace and Conflict Studies. (2019). (Rep.). Institute of Peace and Conflict Studies. doi:10.2307/resrep19799
  9. Abdullah, M., Mehmood, Y., & Hussain, N. Historical Background and Socio-Cultural Aspects of Gujjar Community in Jammu and Kashmir: A Case Study.
  15. The Constitution of India, 1950

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